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Advertising of dietary supplements – trends in recent case-law in Poland

Administrative authorities and courts are clarifying the scope of health claims considered unacceptable.

Health claims are claims that state, suggest or imply that a relationship exists between a food category, a food or one of its constituents, and health. They are used in the labelling, presentation and advertising of dietary supplements. Under EU law (Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods), health claims made about food are prohibited unless they have been authorized by the Commission and included in a list of permitted claims. They are also subject to general rules on health claims set out in the Regulation (for instance medicinal properties cannot be attributed to dietary supplements).

However, the status of some categories of health claims remains uncertain. A list of over 2,000 health claims for botanical substances remains on hold (on a pending list), awaiting EFSA evaluation. Other claims, attributing properties such as probiotic, prebiotic and psychobiotic  are said to imply that the product contains a substance that may be beneficial for health.

Judgments issued by Polish administrative courts continue to clarify EU rules on health claims. The Supreme Administrative Court has recently stated that “the presentation and advertising of dietary supplements cannot suggest to the consumer that supplementation of foodstuffs will prevent health problems or even have curative properties”, rendering the health claim “x is an invaluable aid in supporting the treatment of phobias or depression” unacceptable (II GSK 919/21, 23.09.2021).  The Voivodeship Administrative Court in Warsaw pointed out that the wording of claims must have the same meaning for consumers as that of a permitted health claim (VII SA/Wa 2243/20, 7.04.2021) and that claims cannot exploit fear in the consumer (VII SA/Wa 2223/20, 16.03.2021, where the claim indicated that synthetic vitamin K2 could be “poisonous” or “dangerous”, in contrast to the vitamin K2 offered by the applicant).

Commentary

The Polish dietary supplement market value continues to grow. Its rapid growth is built on increasing demand from consumers, which is why the current state of play with regard to the uncertain future of the pending list, and the lack of clear regulations concerning the terms probiotic, prebiotic and psychobiotic is not only creating a difficult situation for entities who wish to place dietary supplements on the Polish market, but also potentially poses a threat to both public health in Poland and the reputation of the dietary supplements industry.  For now, subsequent judgments provide the only authoritative guideline as to borderline cases.