Those that write about food supplements that in some countries are classified as pharmaceuticals risk having their missives interpreted as illegal marketing materials, according to a European Court of Justice (ECJ) ruling.
The ECJ found any information that promotes unauthorised medicinal claims can be construed as product marketing, after a Danish journalist, Frede Damgaard, was found to have illegally disseminated information about a banned rosehip powder-based, multi-benefit product called Hyben Total.
Blogger beware
The ruling could apply to independent articles written by journalists as well as content provided on online social networks and product review sites by the likes of consumers, bloggers and twitterers, said defence counsel in the case, Susie S. Ekstrand, of the Danish law firm, Lett.
“This ruling is significant because it means anything written about a product that maybe deemed medicinal in one member state, can be deemed inappropriate and consequences may follow for the author,” Ekstrand told NutraIngredients.com this morning.
“We were surprised by this ruling because we thought a commercial interest in the product in question would have to be demonstrated, but the ECJ has ruled otherwise,” she added. “It is a restriction of freedom of speech and journalists need to be careful now, especially those writing online across many member states.”
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She made an example of a journalist writing about the joint benefits of glucosamine, which is classed as a drug in Denmark. Since such claims are forbidden in Denmark, a writer in that situation could find herself in legal hot water.
The verdict
The ECJ placed great emphasis on public health and noted that freedom of expression rights written in 1950 into the European Convention for the Protection of Human Rights and Fundamental Freedoms, was subject to “certain limitations justified by objectives in the public interest”.
It therefore found that statements about products could be construed as advertising under the 2001 Medicines Directive “even though the third party in question is acting on his own initiative and completely independently, de jure and de facto, of the manufacturer and the seller of such a medicinal product.”
The European Union’s highest court said it was for member state jurisdictions to interpret its ruling which agreed with an earlier Danish court ruling against Damgaard, which saw the freelance journalist fined about €1500.
(Source: NutraIngredient)
