Confused by health claims on foods? If so, you are not alone. Research commissioned by the UK Food Standards Agency (FSA) suggests that generally many consumers are confused by such claims. Laura Bellfield looks at what the EC plans to do about it
Food labelling legislation already protects consumers by setting out the requirements for food labels and prohibiting businesses from falsely describing food or applying misleading descriptions. An example of a false description would be where a business incorrectly stated the ingredients contained in a food product purchased by a consumer. However, European Regulation 1924/2006, introduced in the UK in July 2007, goes further, and will in time create a ‘Community List’ of permitted health claims.
The regulation controls the voluntary use of health claims by businesses. Health claims are defined as any claim which states or suggests that a relationship exists between a food, a food category or constituent, and health. An example would be ‘Omega-3 is good for your heart’.
The aim is to provide consumers with accurate and meaningful information on foods, so that when they look at health claims on products consumers can be confident that the claim has been substantiated by scientific evidence. For businesses, the adoption of the EC regulation means that they will be able to compete on a level playing field in all member states when it comes to health claims.
The Community List
The Community List, expected to be in force in January 2010, will contain the list of health claims which can be used across member states. Businesses and interested parties in the UK were able to submit draft health claims to the FSA, who then submitted a draft list to the EC. When introduced, generally only those health claims which appear on the Community List will be able to be used by food businesses.
A claim becomes a health claim if it describes or refers to any of the following:
1 the role of a nutrient or other substance in growth, development and the functions of the body
2 psychological and behavioural functions, or
3 slimming, weight control, a reduction in the sense of hunger, an increase in the sense of satiety and the reduction of the available energy from the diet.
However, certain health claims are prohibited under the EC regulation, for example claims which suggest that health could be affected by not consuming the food.
“The aim is to provide consumers with accurate and meaningful information on foods.
To appear on the list the health claim must be based on generally accepted scientific evidence, and be understood by the average consumer.
The EC regulation sets out a number of general requirements which must be met before health claims can be used in labelling, presentation and advertising of foods. For example, the health claim must not give rise to doubt about either the safety, or nutritional adequacy, of foods other than the product in question. It also contains specific requirements for health claims. In order to be permitted, the health claim must contain the following information either in the labelling, presentation or advertising of the food:
1 a statement indicating the importance of a varied and balanced diet and a healthy lifestyle
2 the quantity of food and pattern of consumption required to obtain the health benefit
3 if necessary, a statement addressed to persons who should avoid the food
4 an appropriate warning for foods which are likely to present a health risk if consumed to excess.
For health claims which are based on emerging scientific evidence, an individual scientific evaluation will be required. A full dossier of information to justify the claim will need to be submitted for assessment by the European Food Standards Agency. However, for claims based on newly developed evidence there is also an accelerated type of authorisation.
The EC regulation is complemented in England by the Nutrition and Health Claims (England) Regulations 2007, with separate regulations being introduced in Wales and Northern Ireland. These regulations make it an offence for a person to contravene certain provisions of the EC regulation. For example, it is an offence to breach the requirement that health claims should not be false, ambiguous or misleading. A person may be prosecuted for an offence in either the magistrates’ court or the crown court. Maximum penalties in the crown court are an unlimited fine, two years imprisonment, or both.
It is a defence for the person accused to demonstrate that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
Businesses must be aware that the EC regulation and the English regulations form only part of a raft of legislation which they must consider when using health claims. Other pieces of legislation which control the use of false or misleading descriptions include the Food Safety Act 1990, the Food Labelling Regulations 1996, the Trade Descriptions Act 1968 (soon to be replaced by the Consumer Protection from Unfair Trading Regulations 2008) and the Control of Misleading Advertisements Regulations 1988. If businesses are in any doubt about the measures they need to take to comply with the relevant legislation they should seek legal advice. It should also be noted that the FSA has published detailed guidance on the EC regulation to help food businesses understand what they must do, and by when.
Laura Bellfield is a solicitor with DLA Piper, www.dlapiper.com