Who: Dutch Advertising Code Committee (the ACC), Stichting Foodwatch Nederland (Foodwatch) and HiPP GmbH & Co Vertrieb AG (HiPP)
Where: The Netherlands
When: 5 March 2019
Law stated as at: 1 May 2019
What happened:
HiPP produces and markets apple flavoured cookies to children. The package of these cookies contains the wording “no added sugars”.
Foodwatch’s complaint
Foodwatch filed a complaint with the ACC, stating that the claim “no added sugars” is a nutrition claim, which does not comply with the requirements of the European Nutrition and Health Claims Regulation 1924/2006 (Claims Regulation). According to the Annex to the Claims Regulation, a claim of “no added sugars” may only be made where:
“the product does not contain any added mono- or disaccharides or any other food used for its sweetening properties. If sugars are naturally present in the food, the following indication should also appear on the label: “contains naturally occurring sugars“.”
The HiPP apple flavoured cookies contain 18% concentrated apple juice, which consists mainly of sugar. Foodwatch considered that the apple juice concentrate, the only sweet ingredient in the cookies, was “undoubtedly” added to make the cookies sweeter and argued that the apple flavour should stem from the apple extract. According to Foodwatch, the apple juice concentrate contributed to a significant amount of sugar in the cookies. As a result, Foodwatch contended that the claim “no added sugars” is incorrect and violates the Claims Regulation. Moreover, because of a lack of adequate and correct information, Foodwatch argued, the claim is misleading to consumers and also violates Dutch Advertising Code.
HiPP’s defence
HiPP argued that the claim on the packaging of the HiPP apple flavoured cookies is accurate. HiPP did not add any sugars nor any mono- or disaccharides to the cookies. The main reason for adding the apple juice concentrate is to create the apple flavour and for the benefit of nutritional value of the ingredient. Without sugars or the concentrate, the cookies do not have the accurate structure and, moreover, cannot be produced in accordance with safety standards, according to HiPP. The apple juice concentrate replaces the sugar in the cookies. Sugar would make the cookies much sweeter and would result in a much higher percentage of sugar. HiPP considers that the consumer is well aware that products without added sugar may still contain sugar in the cookies. The HiPP apple flavoured cookies contain natural sugars, as made clear on the packaging of the product.
ACC’s ruling
The ruling of the Dutch Advertising Code Committee (ACC) starts by clarifying that the parties agree that apple juice concentrate contains (natural) sugars and that a nutrition claim “no added sugars” for a product with a sweet ingredient is allowed, provided that adding this ingredient is for a purpose other than making the product sweet.
According to the ACC, HiPP sufficiently demonstrated that adding the apple juice concentrate was for a purpose other than sweetening the cookies, namely as a defining ingredient to create the apple flavour. The ACC also ruled that HiPP made a plausible argument that the concentrate is necessary for the structure of the cookies and to fulfil safety requirements for the production process. As a result, the ACC found that the nutrition claim “no added sugars” was not in breach with the Claims Regulation nor was the claim misleading since the claim only refers to the absence of added sugars. The packaging contains clear information on the presence of natural sugars in the cookies, according to the ACC.
Why this matters:
This ruling shows that using the claim “no added sugars” does not necessarily mean that the product does not contain any ingredient with sugar. However, such a claim for a product with a sugary ingredient may only be used if it is sufficiently demonstrated that the ingredient is added for another purpose than sweetening the product.
