Background
Kyberg Pharma marketed a capsule-form food supplement containing, among other ingredients, glucomannan. The product packaging included the statement required by Article 10(2)(a) of Regulation (EC) No 1924/2006 about the importance of a varied and balanced diet and a healthy lifestyle.
In 2020, Kyberg Pharma promoted the supplement in a print advertisement using claims including “Lose weight the healthy way” and “Glucomannan helps you lose weight as part of a low-calorie diet.” The advertisement did not repeat the varied-diet and healthy-lifestyle statement. A German trade association sued for an injunction, and the lower courts ruled against Kyberg Pharma. On further appeal, Germany’s Federal Court of Justice asked the CJEU whether print advertising constitutes “labelling” and whether Article 10(2) information must appear in an advertisement when it already appears on the product’s labelling.
The Court’s Holding
The Court held that written advertising promoting a food supplement is not “labelling” under Article 10(2). Although both terms have broad meanings, Regulation No 1924/2006 systematically distinguishes labelling, which serves an informative function connected with delivery of the food to consumers, from advertising, which promotes its supply.
The Court further held that Article 10(2) does not require mandatory health-claim information to be repeated in written advertising when that information appears in the supplement’s labelling. The provision requires the information primarily in the labelling; only if no labelling exists must it be provided through the product’s presentation and advertising. Because Kyberg Pharma’s packaging contained the required statement, Article 10(2) did not require the print advertisement to repeat it.
Key Takeaways
- Written advertising for a food supplement is not “labelling” within Article 10(2) of Regulation No 1924/2006.
- When a supplement’s labelling contains the mandatory Article 10(2) information, a written advertisement using a health claim need not repeat that information.
- The advertising fallback applies when no labelling exists; the judgment does not establish that advertising can cure existing labelling that omits required information.
Why It Matters
The ruling clarifies the allocation of mandatory health-claim information between product labelling and print advertising. Businesses may rely on compliant labelling without reproducing the Article 10(2) disclosures in every written advertisement for the labelled product.
At the same time, the decision preserves a clear limit: where no labelling exists, the mandatory information must be communicated through presentation and advertising. The Court regarded that division as balancing consumer protection with the Regulation’s objective of ensuring the effective functioning of the internal market.