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Judge Offers Hope of Reprieve for 5,000 Vitamins and Health Foods
By Sam Lister, Health Correspondent www.timesonline.co.uk/newspaper
April 12, 2005

A EUROPEAN directive controlling the sale of some vitamins and other food supplements, which is due to become law this year, was declared illegal by a top judge yesterday.

The health food rules, which affect thousands of products on sale in Britain, were seriously deficient and broke basic legal principles, an Advocate-General at the European Court of Justice in Luxembourg said.

The criticism by Leendert Geelhoed was hailed as a victory for the British health food industry’s legal challenge to the European Union directive.

Campaigners said that the directive — which promotes a “positive list” of permitted substances — would have outlawed 300 vitamin and mineral ingredients, resulting in the removal of more than 5,000 products from sale. The Alliance for Natural Health said that 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.

The Food Supplements Directive is designed to tighten controls on the market in products sold as health foods: natural remedies, vitamin supplements and plant extracts. The Advocate-General said that the directive infringed EU principles of “legal protection, legal certainty and sound administration”.

His comments carry judicial weight, but remain only advisory. A final court verdict on the directive is not due until the summer. In most European Court cases, the judges follow the Advocate-General’s advice.

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

The plans prompted a petition in Britain of more than one million signatures, a letter of protest to Tony Blair from more than 300 doctors and scientists and motions opposing the law from both Houses of Parliament.

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 the costs of complying would be prohibitive for many small companies.

Robert Verkerk, executive director of the alliance, commended the Advocate-General for seeing through the “flawed science” of the directive.

One third of British women and a quarter of men take health food supplements in a market estimated to be worth at least £335 million a year. On the Continent, however, health food products are treated more like medicines. Mr Geelhoed said yesterday that the idea of establishing an EU “positive list” was valid, but the directive should be annulled because it lacked clear rules and norms for the European Commission to follow when deciding if a product is allowed on the list.

“I must conclude the [EU legislature] has seriously failed in its duty to design such a far-reaching measure with all due care,” he said. “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.”

The Advocate-General recommended that the court rule the law invalid, but Mr Geelhoed backed 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.

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