Commission Implementing Decision of 24 January 2013 adopting guidelines for the implementation of specific conditions for health claims laid down in Article 10 of Regulation (EC) No 1924/2006 of the European Parliament and of the Council (Text with EEA relevance) (2013/63/EU)

2.1. Distinction of three cases for the implementation of Article 10(2)

In order to comply with the Regulation, Article 10(2) requires two, or where appropriate, four pieces of mandatory information to be provided to the consumer when using a health claim. The information laid down in points (a) to (d) of Article 10(2) must be given in the labelling of the food, or in its presentation and advertising if no such labelling exists. This provision should be understood in the light of the objective of the legislator to ensure a high level of consumer protection by providing accurate and truthful information to help consumers make an informed choice.

‘Labelling’, is defined in point (a) of Article 1(3) of Directive 2000/13/EC and point (j) of Article 2(2) of Regulation (EU) No 1169/2011 of the European Parliament and of the Council(1). That definition states that ‘“labelling” means any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a food and placed on any packaging, document, notice, label, ring or collar accompanying or referring to such food’’. In the Union law there is a definition of ‘advertising’(2), but no definition of ‘presentation’, which should therefore be understood in the light of the explanation provided for in point (a) of Article 2(3) of Directive 2000/13/EC and point (b) of Article 7(4) of Regulation (EU) No 1169/2011.

A health claim can be made on the ‘labelling’ which can mean more than just the label, since it encompasses all the information to the consumer about the food which it accompanies or refers to. The distinction between ‘labelling’ and ‘advertising’ is that ‘labelling’ is concerned with the delivery of the food to the final consumer, while ‘advertising’ is about the promotion of the supply of food by the food business operator.

(a)

In order to comply with Article 10(2), it is necessary to include the mandatory information in the labelling of the food for which the health claim is made.

(b)

Where no ‘labelling’ exists, the mandatory information shall be given in the ‘advertising’ and ‘presentation’ of the food for which the health claim is made. For example, where a health claim is used in a generic advertising for a food (e.g. olive oil, dairy, meat, etc.) which does not link it to a specific product which would have ‘labelling’, then the mandatory information must also be given in the ‘advertising’ and ‘presentation’ of that food.

Article 12 of Regulation (EU) No 1169/2011 establishes a principle that the consumer should always have the mandatory information when making a decision about a purchase of a food. Special mention must be made as regards Article 14 of Regulation (EU) No 1169/2011 on distance selling. Mandatory information shall be available to the consumer before purchase and in the cases of distance selling where access to the ‘labelling’ is restricted, mandatory information must be included in the presentation and advertising of the food, in the material supporting the distance selling whether this is a website, a catalogue, a leaflet, a letter, etc.

(c)

An exemption exists in Article 1(2) of the Regulation for non-prepacked foodstuffs put up for sale to the final consumer or to mass caterers and foodstuffs packed at the point of sale at the request of the purchaser or pre-packed with a view to an immediate sale. That exemption means that the mandatory information listed in points (a) and (b) of Article 10(2) is not required. On the contrary, where appropriate, the information required under points (c) and (d) of Article 10(2) is always required.

(1)

OJ L 304, 22.11.2011, p. 18.

(2)

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising states: ‘advertising’ means the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations (OJ L 376, 27.12.2006, p. 21).