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Friday, 27 July 2012

CJEU to give pharma company branding a health-czech

Even with his eyes shut, Oscar could always
taste which colour the swans were -- but he
liked the black ones best ...
All the way from the Nejvyšší správní soud - and you've got to believe the IPKat, it really is the Nejvyšší správní soud; the Curia website says so -- comes Case C-299/12 Green - Swan Pharmaceuticals CR, a reference from the Czech Republic for preliminary rulings on the following questions:
1. Is the following health claim: ‘The preparation also contains calcium andVitamin D3, which help to reduce a risk factor in the development of osteoporosis and fractures’, a reduction of disease risk claim within the meaning of Article 2(2)(6) of Regulation ... 1924/2006 ... on nutrition and health claims made on foods, as amended by Commission Regulation ... 116/2010 ..., even though it is not expressly implied in this claim that the consumption of that preparation would significantly reduce a risk factor in the development of disease mentioned?

2. Does the concept of a trade mark or brand name within the meaning of Article 28(2) of Regulation ... 1924/2006 ..., as amended by Commission Regulation ... 116/2010 ..., also include a commercial communication on the packaging of the product?

3. Should the transitional provision in Article 28(2) of Regulation ... 1924/2006 ..., as amended ..., be interpreted to refer to (any) foods which existed prior to 1 January 2005, or to refer to foods to which a trade mark or brand name was affixed and which existed in that form before that date?
The IPKat hasn't got a clue what any of this is about, since none of the background facts are available to him and they certainly aren't on the webpage of the UK Intellectual Property Office that announces the existence of the case [Readers -- can you help? What are the trade marks concerned, and what are the claims made about the product?].  If you would like to comment on this case, you can email Policy at policy@ipo.gsi.gov.uk and advise the government whether it should get involved.  Turn off your TVs and block out the O******* if you want to respond, though -- you've only got till  Wednesday, 1 August 2012, to do so.

Incidentally, Article 28(2) reads as follows:
Products bearing trade marks or brand names existing before 1 January 2005 which do not comply with this Regulation may continue to be marketed until 19 January 2022 after which time the provisions of this Regulation shall apply.
Green Swan here
Swans in other colours here: White, Black, Red, Yellow, Turquoise ...

1 comment:

LB said...

Well the full reference can be found here (http://www.nssoud.cz/files/SOUDNI_VYKON/2011/0167_6Ads_11_20120525102258_prevedeno.pdf) in case anyone wants to run it through Google Translate.

Facts of the case are generally these: Green – Swan Pharmaceuticals, a.s. was fined app. € 8 000 by Food inspection authority for introducing in the market a dietary supplement “GS Merlin” with the contested health claim on its packaging: “The preparation also contains calcium and Vitamin D3, which help to reduce a risk factor in the development of osteoporosis and fractures.“ The supplement was introduced before Jan 1, 2005. The Food inspection authority found Swan Pharmaceuticals violated art. 10 of Regulation 1924/2006; Swan Pharmaceuticals contested the decision on the following grounds:

a) Art. 2/2/6 of the Regulation 1924/2006 provides that: “‘reduction of disease risk claim’ means any health claim that states, suggests or implies that the consumption of a food category, a food or one of its constituents significantly reduces a risk factor in the development of a human disease.“ Swan Pharmaceuticals contend that in their health claim they didn’t purport or imply in any way that the disease risk would be significantly reduced; just reduced.

b) Transitional provision in art. 28/2 of Regulation 1924/2006 states that: “Products bearing trade marks or brand names existing before 1 January 2005 which do not comply with this Regulation may continue to be marketed until 19 January 2022 after which time the provisions of this Regulation shall apply.“ According to the Swan Pharmaceuticals the sentence means that “Products (bearing trademarks) existing before 1 January 2005 which do not comply with the Regulation may continue to be marketed until 2022”, while the Authority was of the opinion that the provision applies to Products bearing trademark which (the trademarks!) do not comply with the regulation etc. Given that the prohibited health claim was not part of a trademark, if the Food inspection Authority is correct (which seems pretty evident to me) the contested health claim is not covered by the transitional measure. Conversely Swan Pharmaceuticals argues that its product is exempt from the regime of the Regulation as it was marketed before Jan 1, 2005.

The Supreme Administrative Court (Nejvyšší správní soud) is of the opinion that the health claim does not necessarily have to contain the word “significantly” or equivalent expression in order to be considered a reduction of disease risk claim within the meaning of Art. 2/2/6 of the Regulation. According to the Court, the wording of the definition in the Regulation serves the purpose of excluding claims that could not mislead the consumer; it must not be interpreted in a way which would exclude any health claim that adopts a marginally different formulation.

Secondly the Court concluded that Art. 28/2 of the Regulation cannot be meaningfully interpreted as excluding every product introduced before 1 January 2005. The transitional exception is meant to apply to products bearing trademarks that are themselves health claims. Nevertheless the Court held that this acte doesn’t seem to be completely claire and therefore it is obliged to refer the question to the ECJ.

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