Amid controversy as to the effects of the ECJ ruling on food supplements in Europe, the ANH attempts to shed some light on what is really going on.
What really happened
ANH argues that the ECJ ruling has a 'silver lining'. As you will see below, this is not the same interpretation as all parties.
The ANH has always been about using good science and good law to protect natural health and our view of the ECJ judgment handed down on 12th July 2005 is, and continues to be, based on the opinion of our legal team, led by one of the top European and Competition Law barristers, Paul Lasok QC. Had the Food Supplements Directive been invalidated we would now be facing a complicated system of re-negotiation where many competing interests would have attempted to leave their mark. This could have resulted in a long and drawn out affair which may well have left us in a worse position. This now does not need to happen. The Court has made clear some key provisions of the Directive which massively reduce the difficulty of getting on to the once-feared ‘positive list'.
The legal challenge was only directed at one aspect of the Food Supplements Directive regarding the proposed ban on up to 75% of forms of vitamins and minerals (mainly food forms). The bottom line now, is that this wide-scale ban will not be able to occur, on the basis that companies are prepared to make the minimal effort required to submit ingredients to the ‘positive list'.
Many of the arguments that the ANH was most concerned about have been clarified by the ECJ ruling and the scope of the Directive has been narrowed (please refer to our press release on the website for specifics).
It seems that the ruling may have been a compromise gesture on the part of the Court. It has ensured that the European Institutions (notably the European commission, the Council of Ministers and the European Parliament) were able to avoid the embarrassment of an overturned Directive and that the clarification of the law avoided conflicts with EU law, which had been the key basis of contention in the case brought by the ANH.
Opinions still divided
As you may know, this view is not shared by all and opinions seem to be particularly polarised in the UK, where the two trade associations, the Health Food Manufacturers Association (HFMA), the National Association of Health Stores (NAHS) and a consumer organisation, Consumers for Health Choice (CHC) appear to be of the opinion that the legal challenge has failed dismally and confers no benefits to consumers, practitioners, retailers or manufacturers.
In the latest issue of Health Food Business, a trade magazine that is widely distributed to the UK health industry, which hit the health food shops this week, it is clear that these UK trade and consumer organisations' present campaign strategy is to create a strong political lobby to push the Government towards national derogation (known legally as ‘subsidiarity') for the UK, by using the influence of the British Prime Minister Tony Blair while the UK holds the 6-month rotating EU Presidency. It is the opinion of our legal team that there is no currently available mechanism for achieving this and it was actually the ANH that ran this ‘subsidiarity' argument particularly strongly in its legal challenge but the argument unfortunately was lost for a number of reasons.
Derogation dossiers: just delaying the inevitable ban?
Mainstream industry spokespersons continue to propound the ‘doom and gloom' scenario about the ECJ ruling. They say that all the work on derogation dossiers has just bought some more time and the inevitable bans will come into place anyway, even if it's after 2009. The ANH argues that this need not be the case.
The HFMA and NAHS, as well as companies and other trade associations, worked hard to file dossiers for the derogation provision within the Directive which allows ingredients that have been used prior to 2003 to continue to be used at least until 31 December 2009, on the basis that dossiers are not given an unfavourable opinion by the European Food Safety Authority. Assuming that Member States support the principle of mutual recognition, dossiers filed in one country will provide derogation in another. These derogations, assuming they have met the required criteria for safety and bioavailability, will provide sufficient time for applications to be made to the positive list under the now much clearer and simplified procedures. Furthermore, the ECJ ruling makes it much more difficult for derogation or positive list submissions to be rejected as the burden of proof for lack of safety of a given nutrient has been firmly placed back in the regulator's court.
The ANH therefore urges companies to make full use of the simplified dossier procedures pointed to by the ECJ – and so avoid the ban!
Two bites of the cherry
The ANH finds itself at yet another cross-roads with the UK mainstream industry. To summarise, the UK industry has an agenda that is primarily about protecting UK interests and it wishes to deploy a strategy that, in the view of the ANH, appears to lack any existing legal mechanism. The ANH, on the other hand, has a remit to bring about changes that will have benefits across all EU Member States, and the strategy to achieve this involves trying to secure the best possible interpretation of the Directive and ECJ ruling using available mechanisms.
Rather than wasting resources trying to resolve which strategy is ultimately right, the ANH has chosen to keep its head down and pursue its EU-wide strategy. Surely two bites of the cherry is better than one?
It's just the beginning…
We have not been afraid to take a unique stand before and we will do it again. We have always been committed towards working for change in all 25 Member States – not just the UK – and this continues to be our mission. The ANH will continue our remit of good science and good law. Particularly with regard to the former, by focussing on developing new and appropriate scientific methods of safety/benefit analysis for vitamins, minerals and other micro-nutrients so that the question of maximum dosages can be addressed rationally.
The on-going battle for health freedom is far from over. In fact, it has really only just begun. With the Codex Guidelines having been accepted at the Codex Alimentarius Commission in Rome on 4th July 2005 and the EU Traditional Herbal Medicinal Products Directive due to come in to force later this year, we are really only just at the start of what will inevitably be a long battle for our natural right to freedom of choice in health care.
Please continue your support, without which we are unable to continue to fight for your health freedom.