“Active Bacteria” an Illegal Health Claim

Arla Foods marketed a range of dairy products and yoghurts under the name Arla Wellness in packaging bearing the term “active bacteria”. the Administrative Court in Stockholm has ruled that this term is to be considered a health claim, and an illegal one at that, according to eU Regulation No. 1924/2006.

Description of the Case

Stockholm’s Environment and Public Health Committee (the Committee) ordered Arla Foods to cease marketing bacteria as “good” or “active” in connection with the Arla Wellness product line. The key issue in the case has been whether or not the term “active bacteria” should be viewed as a health claim pursuant to EU Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods (the Regulation). The court was subsequently called on to determine whether the claim is legal or not.

The parties’ Grounds and Arguments

Among other things, Arla Foods claimed that the term  “active bacteria” is nothing more than “neutral and necessary consumer information” and that, consequently, it does not constitute the type of health claim referred to in the Regulation. The company also cited a ruling by a German court concerning probiotics, and claimed that a stricter  application of the Regulation in Sweden would constitute  a barrier to trade.

The Committee primarily asserted that the expression “active bacteria” gives consumers the impression that the product has a positive effect on health and that it is thereby subject to the Regulation’s prohibition. In support of its claim, the Committee cited the Swedish National Food Agency’s guidelines concerning the Regulation, which state that “expressions like containing active bacteria cultures are used to describe the bacteria cultures included as providing health benefits”. Based on this interpretation, the expression comprises a non-specific health claim that lacks a corresponding approved health claim, rendering it illegal.

The Administrative Court’s Judgement

The Administrative Court agreed with the Committee and declared that, in accordance with the Swedish National Food Agency’s guidelines, the term “active bacteria” describes that a bacteria culture included in the product has health benefits. Furthermore, the “Wellness” product name, in itself, implies that the product promotes health. This at least suggests to the average consumer that there is a link between the active bacteria in the products and good health. Thus, “active bacteria” is to be viewed as the kind of health claim referred to in the Regulation. Given that no approved health claim concerning active bacteria exists, the expression is illegal according to the Regulation and may not be used in marketing.

Regarding the risk of imposing a barrier to trade, the Administrative Court pointed out that it is the duty of the courts to interpret and apply EU law and that the fact that a federal court in Germany found that a similar expression does not constitute a health claim does not discharge the Swedish court from this duty.

Consequently, Arla must cease using the expression in its marketing of Arla Wellness products. The company has been allowed a transition period of six months from the date on which the judgement becomes final.

Concluding Remarks

We previously reported in an Update on a decision handed down by the Swedish Market Court concerning illegal statements made in connection with the dietary supplement VitaePro. These two judgements demonstrate the importance of carefully assessing what can be considered a health claim, which health claims have been evaluated and approved and how they may be used.

The European Commission keeps a register of all evaluated health claims. In addition, non-specific claims may also be considered as health claims, or as contributing to how another term used in marketing is understood. Thereby, they are subject to examination in accordance with the Regulation. As in this case, this may concern a name or brand that implies health benefits. If uncertain, you should seek advice prior to launching a new brand or an advertising campaign.

By way of conclusion, and from a practical standpoint, it may be noted that, in terms of the value of the exposure gained, the attention that Arla Foods has received as a result of the case likely more than compensates for the cost of the ordered adjustment.