Health claims on food and the meaning of ‘accompanying’

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A general health claim is one which states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health. General health claims can refer to an effect which is generally beneficial, for example “healthy” or “good for you”.

General health claims can only be made if they are accompanied by an appropriate specific authorised health claim. This means that products which do not meet the conditions to make any of the specific health claims on the EU Register will not be able to make a general health claim. These rules are governed by the EU Nutrition and Health Claims Regulation 1924/2006 (the Regulation).

A recent case[1] in Europe has looked in more detail at what the words ‘accompanied by’ actually mean when health claims are made about food products. Specifically the court was asked whether a general health claim was ‘accompanied’ by a specific claim even if the two claims were on different sides of some outer packaging and not clearly connected with an asterisk.

The judgment made it clear that the location of the claims on the packaging must enable the consumer to understand that there is a link between the claims and that the concept of ‘accompanying’ includes both a substantive and a visual dimension. In relation to the visual dimension, there needs to be spatial proximity or, in exceptional circumstances where this is not possible, a visual link, for example by means of an asterisk. The court made it clear that the definition had a wider interpretation than simply ‘next to’ or ‘alongside’.

In other words, if a general health claim and a specific health claim are on different sides of the packaging and so not in the same field of view, and there is no clear reference between the two, the claims would not be considered to meet the criteria to be ‘accompanied’. However, if a link was made, for example by the use of an asterisk, it would then be up to the UK court to decide whether enough of a link had been made in the individual circumstances of the case.

WM comment

In the past, the Advertising Standards Authority has ruled that accompanying specific health claims should appear next to or immediately following the general health claim or be linked by the use of an asterisk. In light of this case, this would appear to still be a good procedure to follow.

[1] Dr Willmar Schwabe GmbH & Co. KG v Queisser Pharma GmbH & Co. KG