Historic victory for food supplement industry

As reported in Brand Republic (13 February 2004), the EU had attempted to effectively ban vitamins and supplements that are freely used by millions of consumers across the EU.

Despite the fact that the European Parliament passed the EU Directive in 2002 and it was set to become law in August 2005, a major challenge over the legality of the directive has resulted in an historic victory for commonsense.

Jonathan Coad, solicitor for the Alliance for Natural Health who has spearheaded the legal challenges in both the English and European courts said: "The fatal flaw in the Food Supplements Directive was that it purported to give the EU Commission completely arbitrary powers to decide whether or not a substance should be included on its so-called 'Positive Lists' and was therefore safe to use.

"This would've been totally unconstitutional and offended the principle of natural justice. We had no other option but to mount what seemed like an impossible legal challenge -- to get the directive annulled by the European Court of Justice -- although we never once doubted the conviction of our arguments. 

"The test for us was whether the ECJ would go the whole way and throw out this defective piece of legislation with all the consequences that such a decision would entail," Coad said.

It is rare that the ECJ will intervene in such a high-profile way, although there have been landmark decisions from the highest court in Europe over issues such as privacy and human rights that have shaped laws throughout the 25 EU member states.

What was breathtaking about the Food Supplements Directive was that the legislators had omitted to provide clearly defined legal criteria in the operative part of the directive so that the EU Commission could lawfully decide which ingredients made it on to the "Positive Lists".

This could have resulted in more than 5,000 vitamin and supplement products being outlawed throughout Europe even though scientific evidence didn't support such a move, argues ANH. 

The Advocate General's opinion (which is usually followed by the ECJ) is that the Food Supplements Directive must be annulled as it offends against the Principle of Proportionality under EU law.

This opinion is set to become adopted as the decision of the ECJ by June 2005, which will lift a cloak of uncertainty that has shrouded the whole vitamins and supplements industry in Europe as it waited for this ruling by the ECJ.

The EU Directive will then be sent back to the EU Commission for re-drafting  and will have to pass through the co-decision procedure of the EU Parliament before it can be enacted as EU law.

But this is not the end to the story. 

It's still permissible under EU law for the Community Legislature to allow the EU Commission to adopt a license regime for food supplements by means of a "Positive Lists" system.

As a result, consumer groups like ANH want to ensure that the EU provides a "safe harbour" for food supplements so that they're not classified as drugs.

And the ANH also wants to ensure that the EU Commission doesn't hinder the availability of these products to consumers across Europe.

Otherwise there could be another trip on Eurostar for Jonathan Coad...

Ardi Kolah is author of Essential Law for Marketers (Butterworth Heinemann, £25) and is ranked by the CIM as one of the top 50 thinkers in marketing in the world. He takes up the post as Director of Communications, Imperial College, London in May 2005.

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