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Under EU medicinal law, substances presented as having properties for treating or preventing disease are medicinal products by virtue of their presentation. EU food law prohibits attributing to any food the property of preventing, treating or curing a disease. However, if certain conditions are fulfilled, it is allowed to make health claims for foods. Authorities in the Netherlands take the position that the EU prohibition on medicinal claims for foods is redundant because all products with such claims are medicinal products by virtue of their presentation. Thus, claims not (fully) authorised are enforced as infringements on medicinal law. The author systematically and comparatively analyses the food law prohibition on medicinal claims in relation to the concept of medicinal product by presentation. He argues that the presentation criterion is structural in nature and depends on the overall impression an averagely well-informed consumer acquires regarding a product. The prohibition on medicinal claims is behavioural in nature. It is possible to promise consumers too much regarding beneficial properties of a food without actually making them believe that the food is a medicinal product. The author argues against the Dutch interpretation and in favour of an interpretation adhered to by most other EU Member States.
I.Introduction
The EU Regulation on Food Information to Consumers in Article 7 holds a prohibition of medicinal claims. For several years now, the Netherlands (the Ministry of Health in particular) has taken the view that this prohibition is redundant because all products for which medicinal claims are made by definition would be medicinal products by presentation.
Against this background, this contribution discusses the prohibition of medicinal claims for foods and the presentation criterion for medicinal products in relation to each other.
II.The Prohibition of Medicinal Claims
Article 7(3) of Regulation (EU) 1169/2011 on Food Information to Consumers (hereinafter: FIC) reads:
Subject to derogations provided for by Union law applicable to natural mineral waters and foods for particular nutritional uses, food information shall not attribute to any food the property of preventing, treating or curing a human disease, nor refer to such properties.
An equivalent provision regarding the labelling of food supplements can be found in Article 6(2) of Directive 2002/46/EC on the approximation of the laws of the Member States relating to food...