Finally, the Court of Justice delivered another judgment concerning the ethics of advertising and marketing (it makes one wonder what the Court would make of Don Draper's anti-tobacco ad).
In Green Swan, the CJEU considered the law that is applicable to health claims made on the packaging of food. The case concerned a food supplement marketed in the Czech Republic with a statement on its packaging saying that '[t]he preparation also contains calcium and vitamin D3, which help to reduce a risk factor in the development of osteoporosis and fractures'. The Czech Supreme Administrative Court that had to decide upon the admissibility of this claim asked the CJEU to establish to what extent the statement was governed by EU law restricting the use of nutrition and health claims for marketing goods.
The Court holds that for a health claim to be covered by the EU Regulation on nutrition and health claims on food, the claim 'need not necessarily expressly state that the consumption of a category of food, a food or one of its constituents "significantly" reduces a risk factor in the development of a human disease'. According to the CJEU, 'it is sufficient that that claim may give the average consumer who is reasonably well informed and reasonably observant and circumspect the impression that the reduction of a risk factor is significant' (para. 24).
Furthermore, Green-Swan Pharmaceuticals had argued that its food supplement fell outside of the restrictions imposed by EU law, to the extent that Article 28 of the Regulation stated that ‘[p]roducts bearing trade marks or brand names existing before 1 January 2005 which do not comply with this Regulation may continue to be marketed until 19 January 2022 after which time the provisions of this Regulation shall apply.’ On this point, the Court rules that the Regulation 'must be interpreted as meaning that a commercial communication appearing on the packaging of a food may constitute a trade mark or brand name, within the meaning of that provision, provided that it is protected, as a mark or as a name, by the applicable legislation'. The national court should ascertain to what extent such a communication is indeed protected as a trade mark or brand under national law.
