The end of the road for ‘High fibre’, ‘halves your calorie intake’, ‘helps keep your body feeling good’ and ‘folate may help normalise plasma homocysteine levels’? Maybe, courtesy of a wide-ranging new EU Regulation just proposed.
Who: The European Commission
When: July 2003
The European Commission published a proposal for a Regulation on food nutrition and health claims.
Currently there is no EU-wide legal obligation placed on manufacturers to provide full nutritional information on their foods. A 2000 directive on food labelling, presentation and advertising does prohibit the attribution to foods of disease prevention, treatment or curing properties, but proper enforcement of these general provisions is hampered by different interpretations from one member state to another.
The proliferation of the number and type of claims appearing on the labels of foods and the absence of specific provisions at European level has also led some member states to adopt legislation and other measures to regulate their use. This has resulted in different approaches and numerous discrepancies.
Propelled by concerns over obesity, the Commission now proposes a new legislative framework on the use of food claims. The proposed regulation would allow health claims in respect of foods. But this would only be under strict conditions and following an independent scientific assessment and Community authorisation for each individual claim.
The bottom line is that under the proposal, only nutrition and health claims in respect of foods that are in conformity with the Regulation will be allowed in the labelling, presentation and advertising of foods placed on the market within the European community and delivered as such to the final consumer.
By way of an example of the problem, a survey carried out by the Consumers' Association in the UK in April 2000 revealed that most people could not tell which was the healthiest option between a 'low fat' product, a 'reduced fat' product and a '90% fat-free' product. More than half the people thought that the '90% fat free' product contained the least fat, whereas in fact it had the most.
The idea of this proposed Regulation is to prohibit the use of such claims and also claims like 'folate may help normalise plasma homocystine levels' which, although they may well be true, turn out to be meaningless to consumers. Vague, meaningless and unverifiable claims such as 'reinforces the body's resistance', 'helps your body resist stress', 'has a positive effect on your well being', 'helps keep your body feeling good' will be banned.
How will all this be done?
One way will be the inclusion in an Annex to the Regulation of a list of nutrition claims such as 'low fat', 'energy-reduced', 'saturated fat free' and 'with no added sugars' together with their specific conditions of use. Use outside these conditions will simply not be allowed.
So far as health claims are concerned, these are defined as 'any claim that states, suggests or implies that a relationship exists between a food category, food or one of its constituents and health'.
'Implied health claims' will simply be banned. Such claims include those which make reference to general, non specific benefits of the nutrient or food for overall good health or well being, claims which make reference to psychological and behavioural functions and claims which make reference to the advice of doctors or other health professionals or their professional associations or charities or suggest that health could be affected by not consuming the food.
Outside these categories, it will not be possible to make health claims in respect of goods at all unless they are authorised in accordance with the proposed Regulation. Even once such an authority is obtained, they will not be usable unless the label includes a statement indicating the importance of a balanced diet and a healthy lifestyle, the quantity of the food and pattern of consumption required to obtain the claimed beneficial effect, where appropriate a statement addressed to persons who should avoid using the food and where appropriate, a warning not to exceed quantities of the product that may represent a risk to health.
Obtaining authority to use a particular health claim will not be a short or simple process.
Following submission of an application to the relevant authority, this will give an opinion in three months, then forward it to the Commission, the EU member states and the applicant and make the opinion public. Public comments will then be invited and a draft decision will be made by the commission within three months after receiving the authority's opinion. A summary of the final decision will also be included in a 'Register' of health claims.
This is not the end of the story for health claims, however, because the Regulation proposes another category of claim which will be permissible.
These will be 'health claims describing the role of a nutrient or of another substance in the growth, development and the normal functions of the body, which are based on generally accepted scientific data and well understood by the average consumer'
It will be possible to continue making these claims if they feature on a list of permitted claims which will be compiled and adopted within three years of the Regulation coming into force.
It will also be possible to register 'reduction of disease risk' claims and once these appear on the Register they too will be possible to make on the back of this authorisation.
When it comes to comparative claims, a nutrition claim which compares the quantity of a nutrition and/or the energy value of a good with foods of the same category shall only be made if the foods being compared are easily identified by the average consumer or clearly indicated.
There will also be a related move to create a register of 'nutrient profiles' for particular foods. The idea will be that these profiles will have to be respected for nutrition or health claims to be possible in respect of the relevant food. The nutrient profiles will be established, in particular, by reference to the amounts of the following nutrients present in the food: (a) fat, saturated fat, fatty acids, trans-fatty acids (b) sugars and (c) salt/sodium.
Other general conditions include a requirement that the use of nutrition and health claims shall only be permitted if the average consumer can be expected to understand the beneficial effects as expressed in the claim.
Five other conditions will have to be fulfilled before an advertiser can contemplate making any nutritional health claim. These are (1) the presence, absence or reduced content of the substance in respect of which the claim is made has been shown to have a beneficial nutritional or physiological effect as established by generally accepted scientific data, (2) the substance for which the claim is made is contained in the final product in a significant quantity as defined in community legislation or, where such rules do not exist, in a quantity that will produce the nutritional or physiological effect claimed as established by generally accepted scientific data, (3) where applicable the substance for which the claim is made is in a form that is available to be used by the body, (4) the quantity of the product that can reasonably be excepted to be consumed provides a significant quantity of the substance to which the claim relates, and (5) all such claims must be based on and substantially by generally accepted scientific data.
Limits will also be set for the amount of fat, sugar and salt that a product displaying a health claim can contain. This will mean that products will no longer be able to claim to be healthy when they contradict healthy eating advice.
Why this matters:
The Consumers' Association in the UK has hailed this development as a 'great victory for consumers' but there is a long way to go before these much needed changes are concluded and bring about results on the shelves. Heavy lobbying against the initiative is also expected from food manufacturers who have argued that the new rules would hit consumer choice and harm business.
The proposed new regime certainly seems highly complex and restrictive, but with obesity levels reaching epidemic proportions in the UK at least and other EU countries not far behind, some might say that drastic measures are needed.