On 24 September 2015, the EFSA adopted a technical report titled "Scientific and technical assistance on food intended for sportspeople". This report suggests that "sports foods" be considered the same as "normal foods", supporting the view that health claims and its related legislation are sufficient to regulate food for sports people under general food law and thereby potentially bringing an end to the more than two-decade long debate on whether specific legislation for "sports foods" on an EU level are required.
The recent developments summarised below are the latest in a long debate on how sports foods should be categorised under EU law, namely as "normal" food or as specialist products for specific people and purposes.
While some support the viewpoint that sports foods can be adequately covered by general food law and the legislation on food supplements, fortified foods and health as well as nutrition claims at the EU level, others consider that the existing rules are not sufficient and that specific rules are necessary to ensure adequate consumer protection, information and availability of products.
Indeed, until now no specific regime for sports food has been provided for under EU law. Neither the FSG Regulation, nor the currently applicable directive1, enacted in 2009, provide a definition of sports foods, albeit providing that specific rules may be laid down for "foods intended to meet the expenditure of intense muscular effort, especially for sportsmen"2.
In the absence of any specific rules at EU level, Member States are entitled to adopt their own rules on sports foods. Indeed, in case C-107/973, the CJEU dismissed the applicants' submission that certain rules enacted by the French legislature in respect of sports foods were contrary to community legislation. It reached this conclusion based on the fact that no specific community legislation had been enacted in respect of sports foods4.
The EFSA's report
On 24 September 2015, the EFSA adopted a technical report titled "Scientific and technical assistance on food intended for sportspeople". The EFSA's technical report forms part of an overall assessment on the necessity for specific legislation on "sports foods" as foreseen by Article 13 of the FSG Regulation5.
Under Article 13, the Commission was due to present a report on the necessity of provisions for "food intended for sports people" to the European Parliament and to the Council, after having consulted the EFSA. The final report of the Commission was initially expected by 20 July this year. However, the first part of the assessment, namely the advisory report of the EFSA, was only released by the Agency on 29 September 20156.
In parallel to EFSA's report, the Commission's DG for Health and Food Safety also commissioned a study on food for sportspeople, which was due by May this year. As yet no public statement has been made with regard to the completion of that study, nor have the study results been made public.
The general purpose of EFSA's report was to compile the outcomes of scientific advice in the area of nutrition, health claims and Dietary Reference Values relevant to sportspeople. Moreover, the report informs the Commission on how such scientific advice relates to the different conclusions and specifications of the report of the Scientific Committee on Food ("SCF"). Indeed, back in 2001, the SCF had already issued a report on the composition and specification of food intended to meet the expenditure of intense muscular effort, specifically for sportspeople.
Findings of the report
In a nutshell, EFSA's report on sports food found that the scientific advice provided by the SCF on the one hand and the scientific advice provided by EFSA on the other hand do not differ on energy requirements, carbohydrate-rich foods, glycogen metabolism, carbohydrates, electrolytes, hydration, protein, vitamin B6 for muscle growth and protein metabolism.
Therefore, EFSA seems to suggest that there is no scientific evidence indicating that "sports foods" are different from normal foods. The fact that "sports foods" should not be considered different from "normal foods" is also confirmed by the fact that EFSA used opinions on health claims to scrutinize each point throughout the entire report, thereby supporting the view that health claims and its related legislation are sufficient to regulate food for sports people under general food law.
In this regard, the EFSA's opinion can be considered the first step in "sports foods" being considered as "normal foods" under EU law.
But as indicated above, the technical report is just an initial step in a possible future legislative process. Depending on the outcome of this process, the concerned segments of the food industry may either be facing additional red tape, or see the sword of Damocles hung by Directive 89/398/EEC vanish from view.