Sales of protein bars have grown by 20% per year over the past five years according to a recent article by the Sunday Times (March 2017). This increase is partly due to Food Business Operators (“FBOs”) managing to convince consumers that protein supplements are no longer the preserve of elite athletes.
Protein bars blur the line between traditional foods and food supplements. As their use becomes mainstream, they are increasingly being bought by consumers who do not possess specialist medical or scientific knowledge and who are therefore dependent on communications from the manufacturer to inform their purchasing decisions.
Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (the “Regulation”) helps to regulates the protein supplement market by providing a relatively short list of approved nutrition and health claims that European Food Safety Authority (“EFSA”) scientists have concluded are supported by scientific evidence and can therefore be included on marketing and sales communications relating to food products.
Until last summer it was generally considered that the Regulation applied only to marketing and sales materials directed at consumers. This interpretation flowed from the wording of Article 1 of the Regulation, which refers to “consumers”. It was considered that if a professional was receiving the information then they could be relied upon to apply their expert knowledge and thereby protect themselves from being misled when reading about potentially novel or ground breaking new products that might nevertheless be subject to scientifically weak or unproven claims. For example, Healthcare Professionals (“HCPs”) comprising of sports nutritionists, doctors, health visitors and practice nurses were not considered to be as vulnerable as the average consumer to misleading information or claims. This meant that the FBOs looking to promote protein bars could send marketing materials to specialist HCPs that made claims other than those on the list approved under the Regulation.
However, the Court of Justice of the European Union’s (“CJEU”) decision in Sozialverband found that the Regulation also applies to communication with HCPs. The Court held that the reference to “consumer” in Article 1 referred to the food rather than the communication. Consequently the Regulation covers all claims made in commercial communications, directed at anyone, which concern food that is sold directly to consumers. The perceived protection under the Regulation for business-to-business communication was removed and FBO communications to HCPs now fall under the Regulation.
The need for caution when including nutrition and health claims in marketing communications was once again emphasised in March 2017 when the Advertising Standards Authority (ASA) ruled against myprotein.com. Although health and nutrition claims relating to L-Glutamine may be familiar to many, the ASA pointed out that there are in fact no authorised claims for L-Glutamine or Glutamine on the list approved under the Regulation. Therefore, claims such as “Supplementing with L- Glutamine (particularly post work out) can help restore amino acid levels” were prohibited.
In light of the Scottish Food and Drink Partnership’s “Ambition 2030” strategy, which considers “wellness” to be a key market and consumer trend relevant to the Scottish food and drinks industry, this ASA ruling is a timely reminder that the regime that regulates communication of nutrition and health claims is getting stricter. With this in mind, FBOs may benefit from looking for alternative means of engaging with HCPs outside of sending health and nutrition communications that relate to food products that are intended for sale to consumers. Scottish FBOs looking to tap into the wellness market should also carefully consider the remits in with which they can include health claims on marketing communications on wellness food and drink products that are intended for sale to consumers.