Food Law Update

Article by Jonathan Moakes & Nikki Ferguson

Health And Nutritional Claims

Regulation 1924/2006 on nutrition and health claims made on foods was adopted by the European Parliament in December last year and will apply from 1 July 2007 in all member states of the EU (including the UK). The Regulation applies to nutrition and health claims (including "reduction of disease risk claims") made in commercial communications whether in the labelling, branding, presentation or advertising of foods. It places stringent restrictions on what can and can't be claimed on products and where claims are made the Regulation sets out strict criteria to meet. The Regulation applies to any food or drink product produced for human consumption to be sold in the EU and does not cover cosmetics, medicine or pet food products.

What are health and nutritional claims?

Nutritional claims are any claim which states, suggests or implies that a food has particular beneficial nutritional properties due to the energy it provides or the nutrients it contains. Some examples of nutritional claims are "high in vitamin C", "fat-free", "no added sugar" and "high fibre".

Health claims are any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and is in some way beneficial to health.

A "reduction of disease risk claim", is any health claim that states, suggests or implies that the consumption of a food category, a food or one of its constituents significantly reduces a risk factor in the development of a human disease.

Why was the Regulation introduced?

Claims are used on labelling to present products as having an additional health or nutritional benefit.

In most cases, consumers perceive products carrying certain claims to be better for their health and wellbeing. At the moment, a food which is high in fat, salt and/or sugar, can still use claims such as "rich in vitamin C" or "high in fibre" to attract consumers even if the overall health and nutritional benefits of the product are low.

The Regulation aims to prevent consumers from being misled in this way.

Nutrient Profiling

Nutrient profiles have been widely criticized by the food industry and the European Parliament as demonising "bad foods" while ignoring their role in the scientifically proven concept of a balanced diet.

This system ties the use of health and nutritional claims to amounts of certain nutrients in food.

The Regulation will allow nutritional claims where only a single nutrient (fat, sugar, salt) of the food exceeds the nutrient profile of that food. So, if a low fat curry has a high level of sugar in, but levels of salt and fat that fall below the nutrient profile of that food, it will be able to make the claim "low fat". However this is subject to the provision that the statement "High Content of sugar" appears with "equal prominence and in close proximity to the nutritional claim".

The food industry has highlighted that the requirement for the additional negative claim means that positive nutritional claims are unlikely to be used in such circumstances. It is also arguably misleading in that a consumer may understand a product labelled for example, "rich source of vitamin C, high content of sugar" as containing more sugar than a competing product which does not have a claim but which in fact has a higher sugar content.

If two or more of the nutrients exceed the limit, no nutritional claim can be made.

The nutrient profiles will be based on the scientific opinion of the European Food Safety Authority (EFSA).

The "Positive List"

Nutrition claims shall only be permitted if they are listed in the annex to the Regulation and are in conformity with the conditions set out in the Regulation.

Examples of claims contained within the annex are:

Low fat

A claim that a food is low in fat, and any claim likely to have the same meaning for the consumer, may only be made where the product contains no more than 3g of fat per 100g for solids or 1.5g of fat per 100ml for liquids (1.8g of fat per 100ml for semi-skimmed milk).

Fat free

A claim that a food is fat free and any claim likely to have the same meaning for the consumer may only be made where the product contains no more than 0.5g of fat per 100 grams or 100ml.

High fibre

A claim that a food is high in fibre, and any claim likely to have the same meaning for the consumer, may only be made where the product contains at least 6g of fibre per 100g or at least 3g of fibre per 100kcal.

For certain other claims, disease risk reduction claims and claims referring to the health of children, authorisation will be required on a case by case basis, following the submission of a scientific dossier to the European Food Safety Authority for assessment. Likewise health claims based on new scientific data will have to be submitted to EFSA for evaluation before they can be authorised for use.

Trade Marks

The Regulation will apply to any trade mark that can be construed as a health or nutritional claim.

The effect is that name claims are subject to the same restrictions as any other claim, including the requirement not to exceed the nutrient profile for the food in question.

Name claims will only be allowed without prior authorisation if accompanied by a related health or nutritional claim which is valid under the Regulation - e.g. "Low Fat".

It is therefore likely that the Regulation will apply to marks such as Vitalite and Tesco's "Healthy Living".

There is a transitional period of 15 years during which products which bore the name claims before 1 January 2005 but which would constitute prohibited claims under the Regulation may continue to be marketed in the same manner. This only applies to products to which the name has already been applied, so new products cannot be sold under trade mark.

Until nutrient profiles are drawn up by the Commission (which could be up to 2 years from entry into force) it will remain uncertain which name claims will continue to be allowed.

No new trade marks or brand names which imply health or nutritional benefits will be allowed to be put...