In December 2006, European law initiated a harmonized approach to the use of nutrition and health claims for foods across Europe. Primarily, this EU Regulation had the broad and ambitious aim of protecting consumers across Europe from false and misleading claims. In addition, for the first time, the Regulation will make it possible to make a claim that a food can reduce the risk of a particular disease.

In relation to health claims, a food manufacturer wanting to make a statement about the positive effect a product can have has to ensure that this claim has been approved by European Commission following scientific assessment by the European Food Safety Authority.

The EFSA reports for all the claims that are alleged to be supported by well-established science have been completed this summer, with the exception of claims for “botanical” ingredients.  The draft list of these is now with the Commission for consideration and approval.   Examples of health claims on the draft list include:

“Caffeine helps to improve concentration”

and

“Melatonin helps to reduce the time to fall asleep”

Response to Draft List – An Important time for Food Manufacturers

The European Commission aims to adopt a final list of permitted health claims on food products by the end of 2011. Before then, until 17 October, the draft list will be open to comments. In particular, the UK Department of Health would like comments on several particular areas of the list of health claims including:

  • The wording of claims (e.g. those that may confuse due to their scientific nature);
  • Comparative claims (e.g. comparing the health benefits of a product replacing one ingredient for another);
  • Claims giving rise to safety concerns (e.g. risks of choking or risks associated with consuming caffeine products);

Many of the proposed health claims in the draft list will have great commercial significance for food manufacturers. The extent of what can and cannot be stated on a product, or in an advertisement (or other piece of marketing in relation to a product), will have huge implications for all companies in the food industry. Clearly it will be in their interests to ensure that any uncertainties or anomalies in the draft list are clarified or removed before the draft list becomes a functioning touchstone for determining wrongful health claims.

Owen Warnock, Partner at Eversheds, commented:

“This is a key moment in the tortuous process leading to the approval of health claims for food and drink products.  The ‘generic list’ will be the most significant set of health claims for many years to come and the UK Department of Health is now asking industry for urgent input on some key issues…I would urge all food and drink businesses to look at the short consultation letter which the Department of Health has issued and at  the list of proposed claims,  and spend a few minutes reflecting on whether or not there are issues affecting the business which should be picked up on.”