Reprieve for British vitamins and health

Apr 6 2005

Leendert Geelhoed, an Advocate-General at the European Court of Justice in Luxembourg has declared that a European directive controlling the sale of some vitamins and other food supplements, which is due to become law this year, is illegal.

The Food Supplements Directive, which was designed to tighten controls in products such as health foods, natural remedies, vitamin supplements and plant extracts already on the market and would have affected thousands of products on sale in Britain.

Geelhoed, says the directive infringes EU principles of “legal protection, legal certainty and sound administration”, is seriously deficient and breaks basic legal principles.

The criticism by Geelhoed is being seen as a victory for the British health food industry who have legally challenged the directive.

The directive promotes a “positive list” of permitted substances and would virtually outlaw 300 vitamin and mineral ingredients, with the result that the more than 5,000 products would have to be taken off the market.

According to the Alliance for Natural Health, the ingredients under threat include some forms of vitamin E and vitamin C and minerals such as vanadium, silicon and boron, millions of people take these regularly without any ill-effects.

A third of the women and a quarter of the men in Britain take health food supplements and the market is worth at least £335 million a year. Elsewhere in Europe however health food products are regarded more like medicines. Mr Geelhoed says establishing an EU “positive list” was a valid idea, but the directive should be annulled because the rules and norms it imposed for the European Commission to follow when deciding if a product is allowed on the list, were unclear.

Although Geelhoed's comments carry judicial weight they are only advisory and a final court verdict on the directive is not due until mid year, however in the majority of European Court cases, the judges follow the Advocate-General’s advice.

The Advocate-General has been applauded by Robert Verkerk, executive director of the Alliance, for seeing through the “flawed science” of the directive.

The directive was approved by EU governments in 2002 and Health food manufacturers were given until July 12 this year to submit scientific proof that their ingredients are safe. Once they are approved, the ingredients and products go on the “positive list” of permitted substances for use in health foods.

Three groups, the British Health Food Manufacturers’ Association, the National Association of Health Stores and the Alliance for Natural Health argued in court that the law was unnecessary and that many small companies would not be able to afford to comply.

A petition with more than one million signatures including 300 doctors and scientists and a letter of protest were handed to British Prime Minister Tony Blair. Motions opposing the law came from both Houses of Parliament.

The Advocate-General in conclusion says that "the [EU legislature] has seriously failed in its duty to design such a far-reaching measure with all due care, and the directive infringes the principle of proportionality because basic principles of law, such as the requirements of legal protection, of legal certainty and of sound administration, have not been taken into account.”

Mr Geelhoed supports the directive’s aim of improving cross-border EU trade in food supplements by removing differing national rules on the composition, manufacturing specifications, presentation and labelling of such foods, which would also ensure a high level of health and consumer protection - an objective, he said, that required EU-level action, but recommends that the court rule the law invalid.