In a recently delivered Opinion, European Court of Justice Advocate General (AG) Henrik Saugmandsgaard, the former Danish Consumer Ombudsman, proposes that the ECJ shall determine that the nutrition and health claims regulation (NHCR) applies not only to commercial communication directed at consumers, but also to commercial communication directed at ‘Fachkreise’ [healthcare professionals].
In this Opinion, the AG underscores and strengthens the ultimate goal of the NHCR: the permanent and radical disablement of all members of the food industry to communicate with their European consumers.
The AG’s Opinion sheds light on the fact the NHCR is a perfect example of how the presumption of guilt serves as the necessary premise required to justify an “honorable” piece of European food law.
When all health claims are presented as misleading unless authorised after scientific, political, ideological and legal inspection, all food business operators making them must have been guilty unless proven innocent.
The unjustness of the NHCR
This makes the NHCR a sanction that permanently deprives food business operators of the commercial activity of truthfully informing consumers about the health effects of their products. This activity was placed under permanent judicial/legal supervision.
The judicial supervisor is the European legislature, which usurped this activity and replaced it by a ‘Prohibition & Authorisation System’ that sparingly produces a legalised health claim for use as public information in, not as, commercial communication.
The European Commission is well aware of the unjustness of such a sanction. In 2000, it filed a complaint to the ECJ to stop Austria from applying an NHCR-type “Verbotsystem mit Erlaubnisvorbehalt.”
In that complaint, the Commission argued, while referring to the relevant case law of the Court, that such a general prohibition “is not justified as this also includes truthful declarations that are not suitable to mislead consumers.”
While the case was going on the Commission drafted the regulation – the NHCR – that would do precisely what the Commission considered “not justified”: prohibit truthful health speech and usurp the position and rights of individual food business operators.
Health speech and hate speech
According to the Council of Europe in a 2008 Frameworks Decision, hate speech forms a direct violation of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law. Still, the natural and legal persons accused of hate speech, racism and xenophobia, of inciting violence and hatred, are presumed innocent until proved guilty according to law. Unlike food business operators, hate speakers are not deprived of the benefits of the fair trial rights related to that presumption.
The NHCR was erected on the presumption of guilt. It provides procedures for the application, evaluation and administration of health claims that give the false impression that food business operators following them might perhaps obtain a “not guilty.”
However, by following the procedures laid down in the NHCR, those who seek a “not guilty” inevitably incriminate themselves as “nocent” of an offence they did not commit.
The presumption of guilt will and must remain, or else the NHCR would collapse. This is the pernicious yet unseen aspect of the NHCR. It deserves serious attention now that a fitness check is on the table.
Netherlands-based Bert Schwitters is an industry consultant and author of the book ‘Health Claims Censored’. For the longer version of this article, click here.