§3.3 Products which cure illnesses, dysfunctions and malformations – No 17

Point No 17 of Annex I ‘Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.’ This ban covers situations where a trader claims that its product or service can improve or cure certain physical or psychological ailments. For example: A consumer authority ruled that claims that a massage armchair had healing effects on human health (including curing spine and blood circulation diseases) fell under the ban imposed in point No 17 of Annex I (245). Misinformation related to health claims was prevalent during the COVID-19 pandemic. Rogue traders advertised and sold products, such as protective masks, caps and hand sanitisers, which allegedly would prevent or cure an infection. However, such statements were often made without references to solid scientific evidence or without being in full alignment with official expert advice. Such claims may breach Articles 5 and 6 of the UCPD that prohibit misleading actions about the main characteristics of the product; in specific cases such claims may be banned by the prohibition in No 17 of Annex I. To help fight such practices, the Commission brought together the national authorities working in the Consumer Protection Cooperation network and adopted a common position (246) on how to deal with COVID-19 related scams. For example: — A national authority blocked the website of a trader who advertised a drug containing the active ingredients of antiviral for HIV treatment as the ‘only drug against Coronavirus (COVID-19)’ and the ‘only remedy to fight Coronavirus (COVID19)’ despite official statements from health authorities that there is no effective cure to fight the virus (247). — In three cases of traders marketing products whilst giving the impression that the products could protect against the coronavirus, national authorities and a court found that such practices were aggressive. In particular, it was found that traders took advantage of the consumers’ fear of being infected by the coronavirus, thereby reducing their judgment, and the specific marketing practices exploited a situation of serious societal concern (248). Such claims are also partly covered under specific EU legislation. The UCPD is also without prejudice to EU rules on the health properties of products. Point 17 therefore applies only in addition to existing EU rules on health claims. However, any misleading practices with regard to health and wellness products can still be assessed in the light of Article 6 of the UCPD (e.g. where the overall presentation is deceptive). The prohibition relates first of all to claims regarding physical states classified as pathologies, dysfunctions or malformations by medical science. However, as such claims are also regulated by sector-specific EU legislation, the practical utility of point 17 in relation to these practices is marginal. Under Article 7(3) of the FIC Regulation (249), information about a food provided by a trader to a consumer ‘shall not attribute to any food the property of preventing, treating or curing a human disease, nor refer to such properties’. This general provision applies to food business operators at all stages of the food chain, where their activities concern the provision of food information to consumers. The term ‘food information’ means information concerning the food and made available by means of labelling other accompanying material, or any other means including technology tools or verbal communication. In addition, the EU’s Nutrition and Health Claims Regulation (250) lays down detailed rules on the use of nutrition and health claims on foods in commercial communications whether in the labelling, presentation or advertising of foods. Under the Regulation, nutrition claims (‘any claim which states, suggests or implies that a food has particular beneficial nutritional properties’) shall only be permitted if they are listed in the Annex and are in conformity with the conditions set out in the Claims Regulation. Health claims (‘any claim which states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health’) shall be prohibited unless they are authorised in accordance with the Claims Regulation and included in the lists of authorised claims provided for in Articles 13 and 14. The Regulation also specifically bans the following health claims (251): — claims which suggest that health could be affected by not consuming the food; — claims which make reference to the rate or amount of weight loss; — claims which make reference to recommendations of individual doctors or health professionals and other associations not referred to in Article 11 of the Claims Regulation. Health-related claims are also covered by EU health and pharmaceutical legislation. Article 6(1) of Directive 2001/83/EC on medicinal products makes it clear that no medicinal product may be placed on the market of a Member State unless a marketing authorisation has been issued. Articles 86 to 100 of this Directive also sets out specific provisions on advertising medicinal products to the general public. Advertisement of prescription-only medicines and products containing psychotropic or narcotic substances is prohibited. Member States can also forbid advertisement for products which are reimbursed. Advertisement for products which are available over the counter is allowed but with precise conditions. For example: — it has to be set out in such a way that it is clear that the message is an advertisement and that the product is clearly identified as a medicinal product; — shall encourage the rational use of the medicinal product, by presenting it objectively and without exaggerating its properties; — shall not be misleading; — cannot be directed exclusively or principally at children; — cannot use, in improper, alarming or misleading terms, pictorial representations of changes in the human body caused by disease or injury, or of the action of a medicinal product on the human body; — cannot refer to recommendation by scientists or heath professionals who, due to their celebrity, could encourage the use of the product. Article 7 of Regulation (EU) 2017/745 of the European Parliament and of the Council (252) on medical devices and Article 7 of Regulation (EU) 2017/746 of the European Parliament and of the Council (253) on in vitro diagnostic medical devices have introduced at EU level a prohibition on claims in labelling, instructions for use or advertising that mislead the user or patient with regard to the device’s intended purpose, safety or performance, notably by: — ascribing functions and properties to the device which the device does not have; — creating a false impression regarding treatment or diagnosis, functions or properties which the device does not have; — failing to inform the user or the patient of a likely risk associated with the use of the device in line with its intended purpose; — suggesting uses for the device other than those stated to form part of the intended purpose for which the conformity assessment was carried out. In addition, specific limits (i.e. bans) exist on promoting pharmaceuticals and medical treatments between professionals i.e. traders and doctors. The choice of the product/treatment depends on the doctor or specialist who prescribes it. Any misleading advertising in this area (whether it concerns an authorised trader or not) will trigger the relevant EU or national rules and be subject to the respective systems of enforcement and sanctions. These will take precedence over the UCPD. No 17 also applies to goods or services such as aesthetic treatments, wellness products and similar in case they are commercialised with false claims that they are able to cure illnesses, dysfunction or malformations. As regards cosmetic products, Article 20(1) of Regulation (EC) No 1223/2009 of the European Parliament and of the Council (254) on cosmetic products requires Member States to prohibit the wording, use of names, trademarks, images or other signs (figurative or otherwise) suggesting a characteristic the products in question do not possess in the labelling, making available on the market and advertising of cosmetic products. A trader’s failure to produce the appropriate and relevant evidence on the physical effects a consumer can expect from a product’s use will fall under banned commercial practice No 17 on the grounds that a false claim has been made, if it is not covered by sector-specific EU legislation. In order to avoid the ban, traders must be able to substantiate any factual claims of this type with scientific evidence. The fact that the burden of proof rests on the trader reflects the principle, more broadly formulated in Article 12 of the UCPD, which states that ‘Member States shall confer upon the courts or administrative authorities powers enabling them in the civil or administrative proceedings […]: (a) to require the trader to furnish evidence as to the accuracy of factual claims in relation to a commercial practice if, taking into account the legitimate interest of the trader and any other party to the proceedings, such a requirement appears appropriate on the basis of the circumstances of the particular case’. For example: An online trader advertised a number of products on its website, including clothes and cosmetics, as having various positive effects on health (e.g. reducing pain, improving sleep and decreasing wrinkles). However, it could not substantiate its claims with appropriate evidence. A national authority considered this to be an example of the misleading commercial practice banned under Annex I to the UCPD (255).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07