The legal journey of food supplements: From product development to marketing and market surveillance

This article is the continuation of the article from Part 1, discussing the classification of dietary supplements, their manufacturing and launching in the market and labelling requirements.

 

Introduction

The food supplement market in Germany is growing rapidly, fuelled by health trends, an ageing population, innovative online marketing and direct-to-consumer brands. This dynamic environment has also driven strong M&A activity. But bringing a supplement to market requires navigating a complex legal landscape covering product development, labelling, advertising and post-market surveillance. For investors, this means that due diligence must go beyond corporate and financial matters to include regulatory, IP and marketing risks.

 

Marketing of food supplements

“Since I started taking this product every day, my sleep problems have disappeared.” Statements like these flood the feeds of millions of consumers every day on social media platforms such as TikTok and Instagram. They're posted by influencers who are paid by companies to promote their food supplements. The target group is usually young, health-conscious adults who are willing to spend a lot of money on health-related products.

In general, these health-related statements could be deemed as portraying a nutritional supplement as a presentation medicine and they raise questions surrounding the classification of a product as a presentation medication (see the first part of this article). However, no single advertising statement by an individual influencer which “crosses the line,” can justify immediate re-classification of a product as a presentation medication. When assessing whether food products give the impression of being medicinal products, it is the overall impression of the product presentation and advertising context that determines its classification and not isolated statements. But individual statements that create the impression that a food product is a medicinal product can be considered as misleading advertisement, which is prohibited and may be attributed to the company working with the influencer.

Additionally, where – for whatever reason – a nutritional supplement is classified as medication, wholly different provisions concerning advertising would be applicable than where it is considered a foodstuff. Under the Medicinal Products Advertising Act (Heilmittelwerbegesetz), who can advertise medical products in what way and towards whom is very strictly regulated. First and foremost, advertising products that fall under the authorisation obligation for medicinal products without obtaining authorisation is prohibited, even in the case of mere presentation medication. And most – if not all – forms of influencer marketing for medicinal products are prohibited. Classifying a nutritional supplement also has far-reaching implications for marketing purposes. In most cases, where a nutritional supplement isn't regulated under pharmaceutical law, but under food law, the advertisement is also heavily regulated at both the German and European level. As already mentioned in the first part of this article, the European Food Information Regulation stipulates that information about food and food supplements must not be misleading. In particular, food must not be attributed with effects or characteristics that it doesn't possess, nor must characteristics be emphasised as supposedly special when all comparable foods have the same characteristics.

Food mustn't be attributed characteristics for preventing, treating or curing human diseases, nor must it create such an impression. Food advertising should neither exploit fears of illness nor discourage consumers from consulting a doctor by encouraging self-medication. The prohibition applies regardless of whether the statement is factually accurate or scientifically proven. The European Health Claims Regulation provides for an exception to this general prohibition.

The European Health Claims Regulation regulates nutrition and health claims made in food advertising. A nutrition claim expresses that a food has particular characteristics in terms of its energy value or nutrients or other substances it contains or does not contain. Examples include statements like “high protein content,” “fat-free,” “low in sugar” or “source of fibre.” The list of permitted nutrition claims can be found in the Annex to the Health Claims Regulation. Claims not listed must not be used. It also lists the requirements that a food must meet for one of the claims to be permissible. For example, a food may be advertised as “sugar-free” if it contains no more than 0.5g of sugar per 100g/100ml.

These nutrition claims are especially relevant for more “complex” dietary supplements, such as sports nutrition supplements, aimed at providing the body with more than just individual nutrients, yet play a lesser role for “simpler” supplements. Customers looking to buy a daily multi-vitamin, for instance, are generally more concerned with the vitamins and minerals in them than with the nutritional value. For such products, health claims are more relevant.

Health claims express that there is a relationship between a food or one of its components and health. This relationship can also be expressed indirectly, without explicitly mentioning it. It's sufficient if attentive consumers are led to make associations with improving or maintaining certain bodily functions. An example of a health claim would be: “Calcium contributes to normal muscle function.”

Unlike disease-related claims, health claims don't refer specifically to preventing, treating or curing a specific disease or its symptoms but make a statement about the general health-promoting effect of a food supplement. An example of a disease-related claim would be: “Helps against colds.” Disease-related statements are generally prohibited under the European Food Information Regulation (see above). The only exception under the Health Claims Regulation is for statements that claim the consumption of food or food supplements reduces the risk of disease. Such statements may be permitted under certain conditions.

The most relevant group is that of health claims. Among other requirements, they can only be made if they're included in an official list published separately by the EU. Any health claims that aren't included in the list and haven't been added to it before the product enters the market within the designated administrative procedure may not be used. The product also has to meet certain requirements for the specific health claim to be used, such as a certain level of minerals.

A distinction can also be made between specific and non-specific health claims. Specific health claims refer to a specific health-related effect. Non-specific health claims don't refer to a specific effect or physical function but rather attribute general positive effects to the product to create an overall impression that it’s beneficial to health. Examples include terms such as “for a healthy life,” “as important as a daily glass of milk” or “for more vitality.” In the case of non-specific health claims, the Health Claims Regulation specifically stipulates that they must be accompanied by an authorised specific health claim. This often raises questions surrounding the necessary spatial connection between the two claims. In legal practice, many complex questions arise regarding the Health Claims Regulation. For example, it can be difficult to determine whether something should be deemed advertising in general or a health claim in particular. Additionally, where a health claim differs even slightly in wording from an approved health claim, the question arises whether a health claim is still permissible. In 2025, the European Court of Justice also ruled against on-hold claims for botanicals, which in practice will lead to health claims for these relevant herbal products being subject to stricter scrutiny. Penalty proceedings by public authorities and media reactions to alleged violations of advertising law must also be dealt with. Again, failure to adequately implement the requirements may also lead to claims and legal action by competitors or associations.

 

Related contractual issues in connection with food supplements

In addition to the very specific questions about producing and promoting food supplements, a number of contractual and compliance issues may arise when manufacturing, distributing or marketing food supplements – particularly in digital environments.

Focus on manufacturing contracts

These include the allocation of liability for regulatory compliance, particularly with regard to novel food status, health claims and ingredient safety, and clear terms regarding intellectual property rights, product specifications and quality assurance. Contracts must also define responsibilities for post-market obligations, such as product recalls, adverse event reporting, and interactions with regulatory authorities. In cross-border situations, the applicable law, jurisdiction, and dispute resolution mechanisms must be carefully chosen, especially when the product is marketed EU-wide via a centralized platform.

Where white-label manufacturing is involved, the agreements must clearly allocate responsibilities for compliance with food law – from hygiene and labelling obligations to the use of approved substances – and define remedies in case of non-compliance or reputational damage. These issues are particularly relevant in e-commerce-driven businesses with fast product cycles and minimal in-house production.

See the first part of this article for more information regarding the manufacturing of food supplements.

Agreements with agencies and influencers

Many food supplement companies rely heavily on external marketing agencies and influencer partnerships to reach their target audiences. Contracts with such partners must include detailed provisions on the use of health-related statements, approval workflows for content, and liability for non-compliant advertising. Influencer agreements should clearly address who’s responsible for ensuring that health or nutrition claims are legally permissible, how product gifting, affiliate links or sponsored content must be disclosed in a legally compliant way, and how potential complaints or warnings from consumer protection authorities are handled. In practice, this includes defining internal review and approval processes for content, determining which party bears the risk for misleading advertising, and agreeing on notice and take-down obligations in case of legal concerns. Other relevant topics include tax and social security obligations, in particular with regard to Germany’s “Künstlersozialkasse,” a public social insurance scheme for self-employed artists and publicists, which may treat influencers as artists or publicists subject to contribution obligations. The agreements should also contain a proper buy-out clause to ensure that any content produced under the collaboration can be used by the brand or agency across all relevant channels, formats and jurisdictions, ideally without time or media limitations.

Depending on the structure of the campaign, exclusivity clauses, rights of review before publication, and termination rights in case of reputational harm or compliance breaches may also be advisable. Given the speed and visibility of online campaigns, clearly defined contractual responsibilities are key to managing both legal risks and brand integrity.

Online marketing activities, including on social media platforms, also raise questions under general consumer protection law, the Unfair Commercial Practices Directive, and national case law on advertising to vulnerable groups. Claims management, takedown procedures and notice obligations are increasingly included as part of broader digital marketing contracts.

Finally, where multiple parties are involved in marketing and selling the same product – such as brand owners, fulfilment providers and distribution partners – clear contractual arrangements are needed to ensure consistent messaging, regulatory compliance and coordinated crisis communication in the event of problems.

E-commerce activities

Operating web shops and other digital sales channels must comply with a range of e-commerce requirements – including transparent pricing, cancellation rights, information obligations and technical platform compliance (eg accessibility, cookie banners, consent flows). Where subscription models are offered, additional rules around automatic renewal, reminders, and cancellation mechanisms apply.

When pre-packaged food is sold to consumers via e-commerce, most of the mandatory information required by the European Food Information Regulation (see first part of this article) must already be available in the online shop itself. Consumers should be informed about the essential characteristics of the food before making a purchase. This means that the ingredients, for example, must be specified.

 

Navigating M&A in the supplement industry – legal specifics and deal risks

In addition to regulatory and contractual considerations, M&A transactions play an increasingly important role in the food supplement industry. The dynamic market environment, characterised by fast-moving trends, strong consumer loyalty and innovative digital sales models, makes food supplement companies attractive acquisition targets.

In recent years, several high-profile transactions have drawn attention to the sector, including both strategic mergers and private equity investments in fast-growing brands, including D2C companies. These deals often combine established product expertise with scalable e-commerce models, strong branding and direct customer access through online channels and social media communities.

From a legal perspective, these transactions pose unique challenges. Due diligence must go beyond the usual corporate and tax checks. It needs to cover regulatory compliance, product safety, advertising claims, and the validity of any IP rights, including brand, formula and recipe protection. Buyers must assess whether the target's existing product range meets EU and national requirements, especially regarding ingredient legality, proper labelling, and authorised health claims.

Where influencers or other external marketing partners are part of the value chain, contractual structures and potential liabilities must be clearly understood. This includes reviewing existing advertising agreements and ensuring that marketing content doesn’t expose the acquirer to legal risks under pharmaceutical, food and consumer protection law.

Post-closing risks must also be managed: if products are recalled due to non-compliance, or if public authorities initiate proceedings over misleading claims, the financial and reputational fallout can be significant. For this reason, specific indemnities and escrow mechanisms are frequently negotiated to mitigate risks that stem from unresolved compliance issues.

Another common issue is the legal treatment of “borderline” products that sit between food, supplements and sometimes even medical devices. Buyers must be aware that classifications (see first part of this article) may shift depending on product presentation or regulatory developments. This can directly affect the marketability of the portfolio and, in some cases, trigger the need for product relaunch or reformulation.

Moreover, food supplements often rely on a network of white-label manufacturers, fulfilment providers and logistics partners. Reviewing these supply chains is essential to understanding whether quality standards are contractually secured and whether service continuity is ensured after the transaction.

In cross-border deals, additional complexity arises from the fragmentation of national rules, especially outside the harmonized framework of EU law. Marketing strategies that are permissible in Germany may not be viable in other EU jurisdictions without adaptation. Buyers should plan for this early, especially when scaling brands internationally is part of the investment thesis.

Finally, questions of valuation and deal structure often hinge on whether revenue is tied to specific influencer personalities or niche audiences. This affects not just financial modelling, but also the legal structuring of earn-outs, founder retention mechanisms, and non-compete clauses.

M&A in the food supplement industry offers attractive opportunities – but only if the underlying legal framework is properly understood and addressed. Legal advice must be as multidisciplinary and fast-paced as the sector itself, bridging food law, contract law, IP, regulatory compliance and digital marketing. Overlooking these specifics can result in unforeseen legal and operational challenges post-closing.

 

Conclusion

The journey of food supplements from initial development to final sale to consumers is a complex one. They must comply with regulations regarding ingredients, labelling and marketing. Contracts must be drawn up that adequately reflect the interests of the parties involved. So it’s essential for manufacturers and distributors of food supplements in Germany and the EU to be fully aware of and comply with the applicable legal framework. Careful product design and transparent communication are essential to minimize liability risks and ensure market access in a market of growing economic importance.