Who: European Commission / CAP / ASA
Where: EU / UK
When: 14 December 2012
Law stated as at: 10 January 2013
On 14 December 2012, European Commission Regulation (EU) 432/2012 (the “Regulation”) establishing a list of permitted health claims made in relation to foods, other than those referring to the reduction of disease risk and to children’s development and health, entered into force.
From that date, only permitted health claims featuring on the list (or claims which would have the same meaning to the consumer) and those which are still under consideration by the European Food Safety Authority (the “Authority”) can be used in relation to food across the EU. The Authority is responsible for evaluating the scientific evidence supporting health claims.
The list of 222 permitted health claims is set out in the Annex to the Regulation.
The changes bring health claims into line with nutrition claims, where only claims listed in the Annex of EC Regulation 1924/2006 are permitted. A nutrition claim refers to the nutritional properties of a food (e.g. “low in sugar”) whereas a health claim refers to a link between a food and health (e.g. “calcium is needed for the maintenance of healthy bones and teeth”). The rationale of creating the lists of permitted claims is to protect EU consumers against misleading claims and ensure a level playing field for food business operators.
Note that the list published on 14 December does not include health claims for plant or herbal substances, commonly known as “botanical” substances. The Authority is still in the process of evaluating health claims in respect of “botanical” substances. In the meantime producers using such claims can continue to use them.
Popular claims banned
The EU Register of Nutrition and Health Claims provides details of all substances evaluated, including those which have been authorised and rejected (“Authorised” and “Non-Authorised”) and reasons for this. It is available at http://ec.europa.eu/nuhclaims/.
It is interesting to note that around 80% of the health claims reviewed by the Authority could not be proven, including a number of oft-repeated ones. For example, the claim that cranberry juice keeps the urinary system in a healthy condition cannot now be used, and neither can the claim that glucosamine maintains joint mobility.
How to change or add to the list of approved claims
Operators may apply to have additional claims added to the list of permitted health claims or for existing claims to be modified. Any such additions and modifications would need to be based on generally accepted scientific evidence.
If an operator wants to get a new health claim authorised or modify of an existing authorisation, it must apply to the competent authority of the member state. In the UK that is the Department of Health; Food Supplements, Fortification & Claims Team; Nutrition Science & Delivery, Health & Wellbeing Division. The competent authority will be responsible for the submission data to the Commission, which will then forward it to the Authority. A guidance document on the submission format has been prepared in cooperation with the Authority which provides useful information on the type and level of information required and can be found here.
In response to the new rules on health claims coming into force, the Committee of Advertising Practice (“CAP”) has made amendments to the CAP Code and issued some new guidance.
CAP has indicated that there will be significant changes in how the Advertising Standards Authority (“ASA”) approaches health claims made in advertising for food products from 14 December 2012 onwards. Health claims that were previously accepted by the ASA may therefore no longer be considered acceptable and vice-versa.
CAP has also highlighted that any general health claim in an ad, such as “good for you”, will need to be accompanied by a specific authorised health claim in order to be acceptable. They have advised that the term “general health claim” will be interpreted widely, and will therefore not just apply to claims such as “healthy” and “good for you”, but also claims like “superfood”.
Why this matters:
The changes represent a sea change in the regulation of health claims made in relation to foods. While clearing being beneficial to consumers, the new regime is likely to be a headache for food manufacturers and retailers, who will have to keep a closer eye on their advertising copy and potentially spend a considerable amount of money producing evidence in the event that they wish to make a new health claim.