Navigating European patent law for nutraceuticals and functional foods

The European nutraceuticals market is projected to reach $90 billion in 2026 and is expected to exceed $110 billion by 2030. Nutraceuticals – which include functional foods, beverages, and dietary supplements – are widely accessible in supermarkets and other convenient retail locations. Standing in contrast to prescribed pharmaceuticals, consumers are shifting to nutraceuticals because they integrate seamlessly into daily routines, offering a refined ‘two-in-one’ solution that addresses nutritional needs and overall health.

Unsurprisingly, the nutraceuticals field attracts both major multinational corporations and smaller, regionally focused companies. Key players include Amway, Coca‑Cola, Herbalife Nutrition, Glanbia, Nestlé, Emmi AG, Arla Foods Group, Danone, and Unilever.

A significant proportion of European consumers belong to an ageing population that places value on cognitive, cardiovascular, and bone health. At the same time, there is a strong and growing preference for clean‑label products based on natural, minimally processed ingredients. All these factors, combined with an increased focus on preventive healthcare, help explain the remarkable growth of the European nutraceuticals sector.

In the European market, functional foods represent the largest segment at 36% (Europe Nutraceutical Market Size & Share Analysis – Growth Trends and Forecast (2026–31), 2025). Examples include probiotic dairy drinks, protein-enriched snacks, cereal bars, fortified beverages, and meal replacement products, available in supermarkets and specialist stores. Dietary supplements are expected to be the fastest growing segment over the next decade. Another expanding area is infant formula and early life nutrition, driven by the desire of European consumers to provide optimal alternatives to breastfeeding.

Within Europe, several leading markets display distinct consumer preferences in relation to nutraceuticals:

• The UK – supplements targeting weight management and mental well‑being;

• France – beauty and skin health‑focused nutraceuticals;

• Germany – immune support products and performance-oriented supplements; and

• The Netherlands – plant-based functional foods offering health benefits and that support sustainable lifestyles.

Looking further ahead, nutraceutical trends reflect broader developments in healthcare, particularly the move towards personalised medicine. This is expected to drive demand for personalised nutraceuticals. Sustainability will also shape innovation, with increasing interest in environmentally responsible ingredients and greener extraction or production methods.

Given the pace of innovation, securing patent protection in the nutraceuticals sector is an effective way to safeguard market position and prevent competitors from capitalising on new developments. The following section explores the patentability of nutraceuticals from a European perspective and highlights common challenges applicants may encounter.

Nutraceuticals provide benefits beyond basic nutrition, contributing to improved health or a reduced risk of certain diseases. These products – such as functional foods, beverages, and dietary supplements – can be eligible for patent protection before the EPO. In particular, innovations relating to the composition, dosage forms, synergistic ingredient combinations, or demonstrated mechanisms of action can support patentability, even in fields closely related to nutrition. Consequently, despite their foundation in food science, functional foods and dietary supplements can constitute patentable subject matter when their technical contribution goes beyond ordinary nutritional value.

At the EPO, it is possible to obtain protection for known substances or compositions when their use improves health or reduces the risk of certain diseases, provided that the specific medical use has not been previously disclosed or suggested in the prior art. This is achieved through ‘second medical use’ claim formats, which allow applicants to protect a new therapeutic application of a known substance or composition, even where its first medical use is already known. Consequently, functional foods and dietary supplements with a demonstrated novel medical purpose may be eligible for such claims, provided that the newly identified therapeutic effect is supported by the application and satisfies the requirements of novelty and inventive step.

Nutraceuticals often sit at the boundary between therapeutic and non-therapeutic uses. A key distinction is made between the two under European patent law. Therapeutic uses relate to the prevention, treatment, or cure of a disease and are patentable in the form of medical use claims. On the other hand, non‑therapeutic uses – such as general well‑being, nutritional enhancement, cosmetic effects, or non‑disease‑related physiological improvements – must be claimed as non‑therapeutic methods or compositions.

As shown in the examples below, claims directed to disease prevention or treatment are typically regarded as therapeutic, whereas claims focusing on supporting normal physiological function or improving performance are more likely to be considered non-therapeutic. The distinction between therapeutic and non-therapeutic uses has been consistently emphasised in EPO case law, such as the following decisions from the Board of Appeal: T 144/83, T 1186/16, and T 815/22.

Therapeutic claim	Non-therapeutic claim	Key distinction
X for use in preventing viral infections	X for use in supporting normal immune function	Disease prevention versus support of normal function
Y for use in treating insomnia	Y for use in improving sleep quality	Medical disorder versus lifestyle improvement
Composition comprising Z for use in the treatment of fatigue-related disorders	Composition comprising Z for use in increasing alertness	Disorder versus performance

Under the European Patent Convention, whether a claimed use is characterised as therapeutic or non‑therapeutic is determined on a case‑by‑case basis. As a result, the way an application is drafted and prosecuted becomes crucial in shaping how the use is ultimately interpreted.

The following are key considerations for drafting a patent application for functional foods and dietary supplements:

• Including specific diseases or pathological conditions relevant to the stated effect;

• Describing distinct patient groups or at‑risk populations for whom the functional food or supplement is particularly effective; and

• Including at least some experimental data supporting both the mechanism and the therapeutic effect on the stated disease(s).

A practical intellectual property (IP) strategy in the nutraceutical space in Europe includes:

• Drafting applications in a way that makes the intended nature of the use (therapeutic or non‑therapeutic) clear and consistent;

• Freedom-to-operate and/or patent landscape analysis to assess the risk of bringing a given product to market;

• Filing offensive oppositions or third-party observations against competitors’ problematic IP; and

• Engaging experienced representation during prosecution and opposition procedures.