ADVOCATE GENERAL FINDS FOOD SUPPLEMENTS DIRECTIVE INVALID UNDER
EU LAW
ALLIANCE FOR NATURAL HEALTH SET TO WIN ITS LANDMARK CHALLENGE TO
THE EU FOOD SUPPLEMENTS DIRECTIVE
There was tremendous news today for the millions of people in Europe
who choose to use food supplements. Following a landmark challenge
in the European Courts of Justice (ECJ) brought by the Alliance
for Natural Health and Nutri-Link Ltd to the contentious Food Supplements
Directive, which effectively proposed to ban 75% of vitamin and
mineral forms, Advocate General Geelhoed, the senior adviser to
the ECJ, gave his Opinion in favour of the Alliancie’s case.
What does this mean? That the chances of consumers being able to
continue using the natural food supplements they believe are beneficial
to their health are now greatly increased. There has been uproar
about the proposed EU ban, and maybe, against the odds, the consumer
is going to come out on top in what is a remarkable modern day
case of David and Goliath.
In a statement released in Luxembourg today at 0830 GMT, the Advocate
General concluded that:
• The Food Supplements Directive infringes the principle of
proportionality because basic principles of Community law, such
as the requirements of legal protection, of legal certainty and
of sound administration have not properly been taken into account.
• It is therefore invalid under EU law.
It should be stressed that the Advocate General’s pronouncement
is not a ruling. That will come from the ECJ judges, later - probably
around June. But typically, in the vast majority of cases, the
Court Judgment follows the recommendations of the Advocate General.
If the Advocate General’s recommendations are adopted, in
effect, the ban on vitamin and mineral forms not included on the
EU’s "Positive list," due to come into effect
on 1 August 2005, will be declared illegal. In essence, the positive
list of allowable nutrient forms will be deemed to be too narrow,
too restrictive, and based on flawed science.
• This would avoid the totally irrational situations that
the Food Supplements Directive would otherwise create. For example,
synthetically produced selenium would have been allowed on the
positive list, while the natural source found in Brazil nuts would
not; synthetic forms of Vitamin E (often used in "adverse" vitamin
studies reported in the media) would be allowed, but the natural,
most beneficial food forms would not.
An outstanding moment for the Alliance for Natural Health
The Alliance for Natural Health (ANH) is a Europe-wide professional
organisation dedicated to ensuring that good science and good law
are applied to regulation affecting the leading edge of natural
health. If the Advocate General’s recommendations are endorsed
by the ECJ judges, it will represent the culmination of three years
dogged determination, dedication and hard work on the part of ANH
and its many supporters around the world.
"It is commendable that the EU Advocate General has seen through
the flawed science and law of the Food Supplements Directive and
reached his recommendations today," said Dr. Robert Verkerk,
Executive Director of the ANH. "All that ANH is campaigning
and working cooperatively for is the right for consumers to have
access to safe natural healthcare and for legislation to be based
on good science and good law. This is a great day for the tens of
millions of people who believe passionately in the benefits of natural,
preventative healthcare."
David C. Hinde, Solicitor and ANH Legal Director, added: "This is a very
significant Opinion in a landmark case. What we want to see in the EU is the
Food Supplements Directive doing the job for which it was created which is to
provide a "safe harbour" for food supplements so that they are not
classified as drugs, and to promote their availability across the EU. Advocate
General Geelhoed is the most senior Advocate General at the ECJ and his considered
reasoning vindicates ANH’s legal analysis and position. We are very optimistic
that the Court will adopt his recommendations."
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Supporting safe supplements
• ANH supports many aspects of the Directive, and firmly endorses the banning
of ingredients that are patently not safe, stating that existing UK and EU food
law already provides perfectly effective protection from unsafe products getting
onto the market. Furthermore, ANH says that it is not scientifically rational
to classify an ingredient as being unsafe without taking dosage levels into account,
something that was not a condition of being admitted onto the positive list.
• ANH believes that a far more appropriate system for banning any substances
that might pose a risk to health would be to produce a "Negative list" for
ingredients where there was proper evidence of lack of safety. The system proposed
by the EU was going to ban ingredients on the basis that companies did not have
the financial capacity to meet the high data threshold required for the scientific
dossiers demanded by EU authorities. In this way, ingredients that have been
part of the human diet for thousands of years, and which are increasingly difficult
to derive from conventional foods, would be lost, and would not be able to be
supplemented.
The future of the leading edge of natural health secured
Drawing its support European-wide from consumers, manufacturers, retailers, practitioners
and some of the leading experts in nutritional medicine, ANH has taken on the
Goliath of the European Commission and those that support the unscientific and
unlawful ban in the Food Supplements Directive, to protect the interests of everyone
concerned with the leading-edge of food supplements and natural healthcare.
"None of the major EU countries felt the need to oppose our application
for a declaration that the ban on vitamins and minerals in the Food Supplements
Directive was unlawful," added Anthony Haynes, Technical Director of Nutri-Link
Ltd., a UK food supplements company that brought the legal challenge jointly
with ANH. "It’s bizarre how this regulation got this far." A
wide welcome across the industry if the ban is overturned
Greg Watts, Chief Executive of Ultralife, a manufacturer of leading-edge food
supplements, said: "This is very encouraging news. If the ban came into
force we would have to reformulate down to simpler, more basic products that
consumers and practitioners find are less effective."
Dr Damien Downing, a medical doctor and one of the UK’s leading practitioners
in nutritional medicine, said: "Practitioners of nutritional therapy, and
there are thousands of them in the UK, largely use leading-edge food supplements.
If these nutrient forms remain, we can continue to treat our patients with meaningful
solutions and provide the products that we know are so beneficial. A ban would
in one fell swoop remove the vital tools of practitioners' trade."
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