On Monday 2 August 2004 ANH lawyers filed its detailed arguments for its challenge to the EU ban on food supplements in the European Court of Justice.
PRESS RELEASE: 3 August 2004
ALLIANCE FOR NATURAL HEALTH
FILES BRIEF IN EUROPEAN COURT OF JUSTICE
CHALLENGING EU FOOD SUPPLEMENTS BAN
Yesterday lawyers for the Alliance for Natural Health (ANH) and Nutri-Link Ltd filed their Written Observations in the European Court of Justice seeking to overturn the Food Supplements Directive ban on many natural food vitamin and mineral supplements.
Following successful judicial review proceedings in the UK High Court in January this year, ANH's case was referred to the ECJ in Luxembourg (Case C-154/04) on an expedited basis.
ANH is seeking to challenge the Food Supplements Directive's (the FSD) ban on many advanced, natural high potency health food supplements.
From 1 August 2005, the FSD will only allow products containing nutrients which are included on a specific “positive list” to be sold in EU countries, despite the fact that many off-list products were previously being sold quite happily in the UK and in a number of other Member States before this ban. The list restricts use to particular types of vitamins and minerals as well as their precise chemical formulation.
For many years the UK has followed a flexible regime whereby food supplements were regarded as “food” and can be put on the market provided they are safe and correctly labelled. It is left up to the customer to choose which products are bought.
The positive list favours synthetic vitamin and inorganic mineral ingredients. It omits some 300 sources of vitamins and minerals, many of which are natural in origin and can be found in foods. There is no evidence whatsoever that these natural ingredients are unsafe. Indeed, naturally-sourced nutrients are often more effective as they are more easily absorbed by the human body and occur in association with other nutrients which can be synergistic in their action.
Consequently, those companies which produce vitamins and minerals derived from natural foods will no longer be able to sell a large number of their products. This will affect around 5,000 products and may halve the income of smaller companies. Unless the manufacturer obtains a derogation, products will either have to be removed from sale or be re-formulated to comply with the Directive. The costs of re-formulation (where it is possible, in numerous cases it is not) are estimated to run into millions of pounds.
Without these products consumers will be deprived of access to the most effective supplements of their choice and practitioners will lose many of their most useful sources of key nutrients and many supplier companies will be driven out of business.
ANH represents innovative companies, practitioners and consumers and argues that the positive list system and ban is unlawful under EU law. It has no legal base under Article 95 of the European Treaty. It is irrational, disproportionate and discriminatory as it seems to favour industrial and pharmaceutical compounds over naturally sourced nutrients and has no scientific justification.
David Hinde, Solicitor and ANHLegal Director says:
“There is no legal basis for the Directive, as article 95 of the EC Treaty requires it to improve the internal market. In fact it does exactly the reverse. It prevents the use and trade of products containing nutrients that have been lawfully consumed and marketed in the UK for years. Indeed, the Directive really seeks – misguidedly – to further public health objectives which are outside the Community's sphere of competence and are more appropriately dealt with by the MemberState competent authorities.
This is a test case on the proper scope of the legislative powers of the Community Legislator over Member States and has far reaching implications for health as well as freedom of choice.
Other countries like the UK with advanced markets for supplements such as the Netherlands, Sweden and Ireland all stand to benefit if ANH's arguments are accepted by the European Court.”
Dr Robert Verkerk, ANHExecutive Director comments:
“This court challenge is vital for millions of consumers of advanced food supplements, many of whom have maintained optimal health using nutrition as a central approach. We are hopeful that the Court in Luxembourg will invalidate the quite unnecessary ban on the wide range of perfectly safe natural, food-derived ingredients which comprise most of the advanced food supplements.
The proposed ban actually works against health policy where nutrition is increasingly seen as a key way forward.
We foresee great interest in this case, especially from the US where the natural food supplements market is more advanced than in Europe. The implementation of this directive could result in US products not being able to be sold in the UK.”
The Alliance for Natural Health and Nutri-link Ltdare being represented by barristers Paul Lasok QC, Michael Patchett-Joyce and Anneli Howard of Monckton Chambers and Jonathan Coad, Solicitor, at the Simkins Partnership.
For details of the ECJ case please go to ANH's website at the following link.