Law veteran on EU health claim laws: “There is something quite wrong here.”

Jean Savigny, from Keller and Heckman, told Probiotech and Microbiota 2013 that what he considered to be a poorly written law was being executed even more poorly.

Bringing the lack of guidelines issue up, Savigny said: “Why did such a large number of member states submit so many claims for them to be rejected?”​

 “There is something quite wrong here…We need a fresh start,” ​Savigny said in a provocative presentation and panel discussion where he told probiotic firms not to give up on ‘contains probiotic’ claims.

He agreed with his fellow Brussels-based EU law expert, Sebastian Romero Melchor, from K&L Gates, who in an earlier talk about Italy’s approach to probiotic claims, pointed out that there were legal grounds to allow the use of the term ‘probiotic’ as a product descriptor under article 1.4 of the NHCR.

But he said the European Commission’s “silence” ​on Italy’s current use of a condition of use probiotic claim was, "mysterious".​

“One way or the other the ECJ will have to decide.”​​

Of several legal actions mounted with the Court of Justice for the EU (ECJ) or the EU ombudsman, Savigny said, “the grounds are very serious”.​

He said the first oral hearings could take place, “during or after the summer”​ and some kind of verdict, “in the first part of 2014.”​

But he warned that while the actions seek partial or full annulation of the NHCR, the Luxembourg court verdict could stir further troubles.

“Something could come from Luxembourg that will not add to clarity,”​ Savigny observed. “One way or the other the ECJ will have to decide. I am sure the EC is working with a plan B.”​

Under the NHCR more than 1500 general function, article 13 claims have been banned across the EU since December 14 last year, including a blanket ban on probiotic and prebiotic gut and immunity claims. 222 have been approved, mostly vitamins and minerals.