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Inflexibility Guidance? The Case Against Brand-specific Claims

Sebastián Romero Melchor, Lara Skoblikov


In a regime of harmonized permitted health claims under Regulation 1924/20061 (the Claims Regulation), differentiating commercial communications from others has become a challenge in the food industry. The Flexibility Principle, laid down in Recital (9) of Regulation 432/2012,2,3 plays a key role here, allowing for the use of a wording different from that expressly authorized. The use of health claims referring directly to the brand name of a product (Brand-specific Claims), instead of the specific nutrient or other substance subject of the authorized claim, is expressly prohibited in the recommendations on general principles on flexibility of wording for health claims4 (Flexibility Guidance). This article examines the legality of such outright prohibition in the light of EU law.

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