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ECJ rules against Spain on botanical food supplements

10 March 2009

The European Court of Justice (ECJ) last week passed a judgement against Spain for not applying the principle of mutual recognition in its policy on botanical food supplements.

The judgment was handed down on Thursday March 5, in the case between the European Commission and the Kingdom of Spain.

The Commission took the case to the Court of Justice in response to Spain’s practice of systematically considering products that contain herbs as medicinal, despite these products being lawfully manufactured in other Member States as food supplements.

The Commission’s view, subsequently echoed by the ECJ judgement, was that the process of the Spanish authorities to classify such products as medicinal is incompatible with the principle of the free movement of goods.

The Court of Justice’s final decision held that substances which, while having an effect on the body, do not significantly affect the metabolism or change the way in which the body functions should not be classified as medicinal products by function.

The Judgment stated: “The mere fact that one or more medicinal herbs are among the constituents of a product is not sufficient to permit the conclusion that that product contributes to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action.”