A Swedish court has ruled that municipalities which imposed a ban on food supplements broke Swedish and EU law.
The decision by the Supreme Administrative Court of Sweden has been hailed as a “precedent-setting” development by the Nordic Food Supplements Alliance, a manufacturers, distributors and health food store group that has been fighting the bans.
In 2015, Sweden’s National Food Agency issued a handbook that was later converted into an online – Kontrollwiki – to Sweden’s municipalities with instructions on how to implement controls of food products, including food supplements.
The Agency’s handbook references ULs (Upper Limits) on vitamins and minerals contained in a report from 2006 by the European Food Safety Authority (EFSA). Despite the fact that the EFSA’s ULs are only recommendations, and not mandated at the EU level, Swedish municipalities began banning companies and retailers from selling products that the supplements industry insist are safe and legal.
The companies behind the Nordic Food Supplements Alliance say that these actions have entailed Swedish consumers missing out on products and caused companies to suffer considerable economic losses.
This month’s judgement by the Supreme Administrative Court in Sweden (case no. 3160-17), follows a campaign by the 12 members of the Nordic Food Supplements Alliance to defend vitamin D products (an earlier challenge concerning a ban of vitamin B6 supplements produced a similar ruling, with the Court dismissing the EFSA upper limits as non binding).
Commenting on the latest case, Rolf Forslund of Kenkou Selfcare AB, one of the companies which has been seriously impacted by the National Food Agency’s erroneous information to municipalities, said: “There are no official, legally binding maximum permitted levels (MPLs) threshold values for vitamins or minerals, neither under Swedish law nor within the regulatory framework of the European Commission. On the other hand, food supplement contents are regulated by the Food Supplement Directive 2002/46/EC, issued by the EU Commission with the aim of harmonising the trade of food supplements, and which is incorporated into Swedish law.”
Despite protests from brand owners and lawyers, municipalities continue to be encouraged to impose sales bans and to submit reports to the EU’s safety-alert system for hazardous substances in foodstuffs, the Rapid Alert System for Food and Feed (RASFF), if food supplements were found to exceed EFSA UL values.
“Swedish municipalities are being encouraged to act arbitrarily, without any legal basis and that the crucial RASFF system is being abused”
“This means that Swedish municipalities are being encouraged to act arbitrarily, without any legal basis and that the crucial RASFF system is being abused,” Forslund continued. “This is very dangerous, as it undermines the system’s vital functions. RASFF is meant to warn of the presence of hazardous substances like poisons, heavy metals and bacteria (i.e. Salmonella) in food, not for vitamins in completely safe doses.”
But the Nordic Food Supplements Alliance is confident that this picture is changed by the ruling from the Supreme Administrative Court. “Now that this is a judgment by the Supreme Administrative Court, precedent has been set,” commented Marcus Angström, attorney at 7Wise Law firm explains.
He continued: “I have great sympathy for the affected companies suffering from the National Food Agency’s and many municipalities erroneous actions. I now presume that the National Food Agency will immediately align its instructions according to this judgment so that correct information from now on will go out to all the Swedish municipalities.” says Marcus Angström, attorney at 7WISE Law Firm
Patrick Wahlberg of Greatlife Group AB, which recently received an amendment to the previous ruling against its product with a daily dose of vitamin D 125 μg, added: “It is completely unacceptable for companies and consumers to be subjected to such arbitrary treatment by Swedish government agencies. As business owners, we already apply the principles referred to in the Food Supplement Directive by means of clear labelling and the stipulated control procedures.”
Main image: The Supreme Administrative Court of Sweden, Stockholm.