Dominic Watkins, Senior Associate, DWF explains how to make the most of the EU’s authorised claims list
In the increasingly competitive food market, it is vital for manufacturers to ensure that their products stand out from their competitors. The use of health and nutrition claims to make foodstuffs more attractive has always played a vital role in doing this.
However, food legislation is currently in the midst of substantial change. New labelling regulations are soon to be rolled out across the EU, and the register of approved Health Claims has finally been agreed and will be in force from December 2012; Manufacturers will soon face a new set of challenges in terms of how they market their products. With that in mind, its important to look at how the new rules will affect the industry and consider any potential legal pitfalls that manufacturers could face.
The health and nutrition claims made regarding food products have become more important to the marketing of products in recent years, as consumers become increasingly discerning in the quality of products they purchase. Such claims can make a product much more interesting and desirable, allowing manufacturers to charge a premium for them.
While the claims that manufacturers make about their products have always been required to be true and capable of substantiation, the EU has recently sought to take the regulation of such claims a step further. It has therefore ruled that only specifically authorised health claims – which have been subjected to rigorous scientific analysis by the European Food Safety Authority (EFSA) – may be made.
When the more restrictive EFSA-approved list of 222 claims comes into force in December this year, it will undoubtedly have a significant impact on the industry. Several well-established claims, which have historically been extensively used in the marketing of food products, have not been approved by the EFSA. Antioxidant and probiotic claims are probably the two most well-known examples, and, from 14th December onwards, manufacturers that currently market their products based on these claims will have to look for alternatives.
Unsurprisingly, many food businesses are currently in the process of identifying new, authorised claims that they will be able to use as the differentiating factor for their products.
Some manufacturers have identified that their products already contain enough of a particular vitamin or mineral to make an alternative claim that has relevance to its target audience. For others, the solution is not so simple, and where products do not already contain ingredients at a sufficient level to make alternative health claims, manufacturers are considering whether fortifying or reformulating their products is a viable solution.
Fortifying and reformulating are two alternative methods of adjusting food products to make its content more attractive to consumers. Fortification involves adding an ingredient solely to support a claim, while we use the term reformulation to describe a process in which some of the less attractive ingredients are omitted from a product. A common example of reformulation is the replacement of artificial ingredients with natural alternatives, in order to support a claim that the product is ‘natural’.
Reformulation allows the manufacturers to reduce the presence of undesirable properties in a product, such as saturated fat or sodium, to allow the manufacturer to make a positive nutrition claim. The authorised list of health claims allows businesses to claim, for example, that “reducing consumption of saturated fat contributes to the maintenance of normal blood cholesterol levels”, a highly desirable claim to be able to associate with a food product.
Adding vitamins or minerals to foodstuffs by way of fortification is a particularly promising option for manufacturers. The addition of just 15 per cent of the recommended daily allowance (RDA) of a vitamin or mineral is enough to open up an array of health claims for most products. This is because 15 per cent of RDA is the level at which the Nutrition and Health Claims Regulation allows a product to be defined as a ‘source of’ the given vitamin or mineral. As long as it is made clear that it is the added nutrient, rather than the product itself, which provides the associated health benefits, then there is no limitation on using any of the claims associated with the added vitamins or nutrients.
The assertions that can be made through the addition of nutrients extend across the full range of claim areas. For example, if a manufacturer wants to make claims about benefiting muscles and bones, it can add some calcium or vitamin D. If it wants to link its product with brain functioning benefits, then it is simply a case of adding some Docosahexaenoic acid (DHA). For the majority of such claims, a manufacturer only needs to ensure that the product contains a ‘source of’ level (ie 15 per cent of RDA), meaning that the claims are relatively easy to achieve. Some examples are set out below:
CLAIM WITHOUT BLAIM?
One of the biggest challenges with making most of the authorised claims, however, is that the approved language to describe the benefit is not particularly consumer friendly. All of the guidance that has been issued to date has made it clear that manufacturers do not need to use the exact wording that the EU has produced for each claim, as long as the language used has the same meaning for the consumer. However, it is not particularly clear how far businesses will be allowed to go in developing alternative terminology.
For example, it isn’t clear whether it will be acceptable to use the word ‘healthy’ rather than ‘normal’ in claims where normal would usually be associated with healthy – such as with claims relating to bones, teeth, muscle function, and so on. While it is likely that this will be acceptable, various wordings will need to be tested with enforcers, and some manufacturers may find themselves falling foul of stringent enforcement as the boundaries are established.
FOOD FOR THOUGHT
Adding ingredients to foodstuffs can be a very effective way to make products more attractive to consumers. What’s more, with the list of authorised claims driving many manufacturers to rethink how and what claims they can make, it is likely that many will be thinking about how they can make the most out of fortifying their products with vitamins and nutrients. However, until there is some clarity regarding how much leeway manufacturers have to deviate from the EU’s official claim wording, the true value of product fortification cannot be fully realised.