A healthy dose of clarity: CJEU rules on advertising labelling

The regulatory framework governing health and nutrition claims presents ongoing challenges for food and drink brands. The recent Kyberg Pharma judgment of the Court of Justice of the European Union (CJEU) offers important clarification on how those rules should be interpreted and applied. In this blog, we consider the Court’s findings and the practical implications for brands developing marketing and advertising campaigns.

Regulatory Context: What Are Health and Nutrition Claims?

Under European and UK food law, any commercial communication that states, suggests, or implies a relationship between a food category, a food, or one of its constituents and health is closely regulated by Regulation (EC) No 1924/2006 (the Nutrition and Health Claims Regulation, or NHCR) framework. A nutrition claim refers to what a product contains, or does not contain, for instance, stating that a supplement is “high in Vitamin C” or “low in fat.” A health claim describes what a product or ingredient does for the body, such as stating that “Vitamin D contributes to the normal function of the immune system” or making a reduction-of-disease-risk claim.

Because these claims can have significant commercial influence and directly affect consumer choices, the NHCR requires every health claim to be scientifically substantiated and authorised on an official register. To help prevent consumers from viewing supplements as a replacement for proper nutrition, the law also requires specific qualifying statements to accompany these claims, most notably reminding consumers of the necessity of a varied and balanced diet and a healthy lifestyle. This requirement is where the uncertainty lay in Kyberg Pharma: is this requirement solely for product labelling, or do brands have to consider written advertisements as well?

Overview of Kyberg Pharma

On 17 September 2026, the CJEU delivered its judgment in Case C-657/24 (Kyberg Pharma Vertriebs-GmbH v Schutzverband gegen Unwesen in der Wirtschaft e. V.).

The dispute originated in Germany, where Kyberg Pharma launched a series of written print advertisements promoting a weight-management food supplement. While the physical packaging of the product carried a fully compliant health claim along with all mandatory statutory warnings, the print advertisement itself omitted the specific statement highlighting the importance of a varied, balanced diet and a healthy lifestyle, although it expressed health claims such as “lose weight the healthy way” and “Glucomannan helps you lose weight as part of a low-calorie diet.”

A German fair-trade association challenged the campaign, asserting that under the NHCR, written advertising is functionally equivalent to "labelling" and must therefore carry the exact same statutory disclaimers. The German Federal Court of Justice (Bundesgerichtshof) suspended proceedings to refer two core questions to Luxembourg.

The Two Referred Questions:

1. Does written advertising constitute "labelling" under Regulation (EC) No 1924/2006? Whether promotional print material for a food supplement falls under the legal definition of "labelling" or "presentation," thereby requiring all statutory disclosures and health claim qualifiers to appear directly within the ad text itself.
2. Are mandatory health disclosures required in written advertising if they are already fully present on the physical product label? Whether Article 10(2) or Article 14(2) of Regulation No 1924/2006 obliges food business operators to repeat mandatory statements, such as the necessity of a balanced diet and healthy lifestyle, in promotional print copy when those disclosures are already clearly displayed on the product’s physical packaging upon purchase.

The Court answered both questions in favour of Kyberg Pharma. Firstly, the CJEU held that written advertising does not fall within the concept of “labelling” under the NHCR and, secondly, that the information listed in Article 10(2) does not need to be reproduced in written advertising when it already appears on the product's labelling. It is important to emphasise that the requirement under Article 10(2) is to place labelling information on the product label. But where no labelling exists, that information must then appear in the presentation and advertising of the food. So, clearly where the information is available on the label, the obligation is therefore satisfied and that information does notneed to be repeated elsewhere e.g. on written advertising.

Refining the Line Between Promotion and Presentation

At the heart of this decision lies an important commercial distinction, namely the operational difference between catching consumer attention and informing the final purchase decision. A print advertisement is designed to generate interest and draw a prospective buyer toward a product. A label, by contrast, is the location where the statutory information required by the NHCR is provided. The CJEU’s analysis therefore provides useful clarity by recognising that an advertisement and a product label perform different, though complementary, roles in the consumer journey.

Key Takeaways

Strategic Impact for Brand Advertisers & UK Businesses

• Divergence with UK ASA Enforcement: UK brand owners must remain cautious when translating this decision to domestic marketing. Post-Brexit, the Advertising Standards Authority (ASA) enforces the UK CAP Code alongside assimilated law. While the CJEU decision may be persuasive on how courts approach the distinction between written advertising and labelling, the ASA may still assess UK-facing adverts independently under CAP Code Rule 15. If the ASA considers that omitting a qualifying statement makes a health claim misleading to a UK audience, it may continue to uphold complaints. UK advertisers should therefore view this judgment as a welcome clarification for EU campaigns, while continuing to evaluate UK-facing copies against local ASA standards.

Practical Significance for Food Supplement Producers

• Greater Flexibility for Print Campaigns: Marketing teams are likely to welcome the decision, as it confirms that print advertising does not necessarily need to reproduce every on-pack statement, provided the physical packaging is compliant and the advertisement is not otherwise misleading.
• Continued Focus on Packaging Compliance: The decision draws a clear and practical distinction for labelling compliance by allowing Article 10(2) information to remain on the physical product label, provided that information is properly supplied there. That also means any reliance on the judgment depends on the underlying packaging being fully compliant and accessible to consumers before consumption or use.
• More Measured Enforcement Risk: The ruling may make it harder to challenge print campaigns solely because they do not repeat on-pack warnings, but it does not remove the need to assess each advertisement against the wider rules on authorised claims, consumer presentation, and misleading advertising.
• Narrow but Useful Scope: The ruling should not be read as giving advertisers greater freedom to make health claims or to omit information where the overall presentation could mislead consumers. Its practical value is narrower but still important: where the mandatory Article 10(2) information is properly provided on the product label, it need not be repeated in written print advertising of the kind considered by the Court.

Pragmatism in Consumer Protection

• The Court’s approach to consumer protection in this decision is notably pragmatic. Rather than treating the absence of Article 10(2) wording from written advertising as automatically problematic, the CJEU focused on whether the required information was properly made available through the product labelling.
• Because the physical packaging carried the required statement on a varied and balanced diet and healthy lifestyle, the Court concluded that Article 10(2) did not require that information to be repeated in the written advertisement. Requiring brand owners to duplicate Article 10(2) wording across written print advertising would add a disproportionate compliance burden without necessarily improving consumer understanding in every case.

In short, the ruling is a narrow but positive clarification for food supplement producers and marketing teams. It confirms that, where the required Article 10(2) information is properly provided on compliant product labelling, it does not need to be repeated in written print advertising of the kind considered by the Court. That should support more workable campaign development, while leaving intact the core rules on authorised health claims, compliant packaging, and advertising that is accurate, balanced and not misleading.