On 20 September 2013, the European Commission adopted implementing rules for so-called generic descriptors under Article 1(4) of the Regulation (EC) No 1924/2006 on nutrition and health claims made on food (hereinafter "EU Claims Regulation"). The new rules support the EU Claims Regulation by laying down rules for using generic descriptors to describe food or drink products in cases where they could be interpreted as claims because they imply a health benefit.
Generic descriptors or denominations have traditionally been used to indicate a particularity of a class of food or drink product which could imply an effect on human health, thus bringing them into the scope of the EU Claims Regulation. Examples of generic descriptors include "digestive" or "cough drops". Typically such indications would be banned under the EU Claims Regulation as unapproved health claims; however the new rules on generic descriptors provide an exemption which permits their use in the EU. In order to apply for such an exemption under the EU Claims Regulation, food business operators would have to submit an application for authorisation.
Content of the Generic Descriptors Regulation
Commission Regulation (EU) No 907/2013 concerning the use of generic descriptors (denominations) (hereinafter "Generic Descriptors Regulation") sets out the rules for the use of generic descriptors in labeling of food or drink products in the EU. Applications may be submitted to a particular EU Member State by food business operators (FBOs) individually or via trade associations acting on behalf of members.
Usually, the choice of Member State would correspond to the place where the product is available on the market or would be first placed on the market. The supporting data necessary to accompany these applications is laid down in Part B of the Annex to the Generic Descriptors Regulation. It includes:
a brief description of the particularity of the class of food or beverage which the generic descriptor covers;
a brief description of the generic descriptor;
- followed by a detailed description of the generic descriptor, highlighting the particularity and the elements that distinguish that particular class of foods or beverages from other products falling within the same class of foods or beverages; and
- supporting data to indicate the presence of the generic descriptor on the market for over twenty years in the Member State(s) where it is marketed.
The EU Member State where the application is made and other EU Member States where products carrying the relevant generic descriptor are marketed, may also request additional information from the FBO, should they consider it necessary for the assessment of the application. For example, they may request information demonstrating that the consumer links the generic descriptor with the relevant product, or, information which supports a consumer's perception of the implied health effects of a product bearing the generic descriptor.
Once the EU Member State where the application is made has collected all necessary information, they will forward the application together with their opinion to the European Commission without delay. Other interested EU Member States may also submit their opinion on the application. Following subsequent discussions within the Standing Committee on the Food Chain and Animal Health (SCFCAH), the Commission will then ultimately put forward a proposal for a vote by the European Parliament and the Council of the European Union, who would either oppose or approve the use of the generic descriptor in the EU.
The Generic Descriptors Regulation is directly applicable in all EU Member States and entered into force on 11 October 2013. However, the Regulation only sets the rules for the application process whereas generic descriptors as such are subject to the provisions of the EU Claims Regulation and, in principle, should not be used if they are not authorised. Food business operators would be advised to take into consideration this category of denominations when designing or revising their labels so as to clarify if they contain generic descriptors and determine whether an application should be made.
Should an application under the Generic Descriptors Regulation be necessary, it is noteworthy that divergent approaches may be adopted depending on the EU Member State assessing the application. This first stage at national level is to determine the typical reaction of the average consumer to the generic descriptor and EU Member States may have differing approaches as to the suitability and interpretation of the information submitted with the application.