Newsletter IP law 5/18

NUTRITION AND HEALTH CLAIMS – WHAT DO THEY GO WITH?

Legal requirements concerning food advertising differ significantly from those applicable to other products. On account of an important sphere under protection, i.e. human health, the EU legislator has undertaken special steps in order to ensure that promotion of such products does not compromise such an important legal interest. The European Commission is planning on strengthening consumers’ position against businesses. To this end, it has proposed a number of amendments to EU law.

 

REGULATION 1924/2006

Regulation 1924/2006 supplements general national and community regulations forbidding food advertisements that may mislead consumers. The instrument regulates the so called nutrition and health claims that are often use in such advertisements.

NUTRITION CLAIMS

A nutrition claim is any statement, even merely implying, that the food product has special nutritional value, due to the energy content or nutritional ingredients which it does or does not contain. Such claims include “Contains no fat” or “Reduced … content”.

HEALTH CLAIM

A health claim is any statement stating, suggesting or implying a correlation between a food category, a particular food or one of its ingredients and health. These include statements such as “protein helps maintain healthy bones”.

LIST OF ADMISSIBLE CLAIMS

On the grounds of the Regulation lists have been drawn up of admissible health and nutrition claims and conditions for their use have been specified. For instance, the health claim “source of proteins” and the like may only be used on products whose energy value derives a minimum 12% from protein.

RECOMMENDATIONS

We recommend that businesses engaged in promotion of foodstuffs verify the contents of their planned advertising campaigns for compliance with the law, including Regulation 1924/2006. Sanitary inspectors often intervene in cases where advertisements fail to comply with the Regulation. Advertising in breach of the Regulation is subject to the sanctions under the Act on combating unfair competition. This means that a business can sue a competitor using inadmissible health or nutrition claims and demand inter alia publication of a statement of apology correcting the advertising message.

 

 

CASE LAW

The Appeals Court in Warsaw has held that Youtube is responsible for the content uploaded by users.

WHAT WERE THE FACTS OF THE CASE?

A clip was uploaded on Youtube showing a protest of a group of residents against the local housing policy. In order to reinforce the message, the protesters brought a dummy into the meeting room during a Council meeting. The dummy was wearing a photo of the then vice mayor on its face. The dummy was dressed in a mini skirt with no underwear and its legs were spread.
The city clerk only found out about the clip three years later after her daughter had come across the clip online. Her attorney asked the portal to remove the film; however, to no avail. As a result, the activist brought an action against Youtube for personal rights protection.

HOW DID THE REGIONAL COURT RULE?

The Regional Court dismissed the claim. It held that the form of the protest enjoyed protection under the freedom of speech principle. The form of the protest was deemed a satire involving a caricature of the claimant, for which the latter as a public person should have been prepared. The numerous letter sent to the portal did not constitute, in the Court’s opinion, reliable information justifying the portal in removing the clip.

WHAT DID THE APPEALS COURT RULE?

The court of the second instance did not affirm the decision of the Regional Court. The judges admitted that those in a position of public authority must demonstrate a higher degree of resistance to criticism. Nevertheless, the portrayal of the claimant had not connection with the local authority position held by the claimant and consequently constitute breach of her personal rights. The form of the protest was found vulgar and uncivilised. In addition, Youtube administrators should have removed the film upon the attorney’s demand.

WHAT CONCLUSIONS CAN BE DRAWN?

The judgment of the Appeals Court demonstrates that freedom of speech is not an absolute right. The protection of human dignity, as guaranteed by the Constitution and international conventions, may justify limiting the right to criticise, even if the person criticised holds a position of authority. The ruling also affirms that the administrators of Youtube, and other similar portals, are responisble for the content posted by the users. Upon obtaining reliable information about illegal content, the portal should have prevented third parties from viewing it. The Appeals Court also criticised the portal for ignoring the attorney’s request to remove the clip. Such information from a professional attorney, who in the opinion of the Court should be deemed to be knowledgeable of the law, should have been treated more seriously by the portal. Thus, this may encourage one to use the services of a professional in similar cases.

 

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