New Rules For The Food Sector
26 July 2012
Category: Legal Articles
Many consumers are pursuing healthier lifestyles by buying food that claims to have reduced fat, fewer calories, lower salt or increased nutrients. But the area of healthy food is now becoming a battleground for consumers and producers.
Last May, the European Commission adopted a list of nutrition claims, following an assessment process set out in a 2006 EU regulation. After scientific assessment by the European Food Safety Authority (EFSA), only 222 of more than 4,000 claims were appproved.
Claims that succeeded, and can be used in the promotion of foods, include: 'Reducing consumption of sodium [salt] contributes to the maintenance of normal blood pressure', provided the food satisfies certain conditions.
Porridge oat manufacturers are already benefiting from having their health claims approved, so expect to see, 'Oat beta-glucan has been shown to lower blood cholesterol' on the packaging.
Not so delighted are the producers of probiotics, who will no longer be able to claim that natural `probiotic' yoghurt is good for your digestion, or that probiotic supplements boost healthy gut micro-flora. The commission rejected the "insufficiently characterised" claims, which cannot be used after the end of this year. Producers are now considering other avenues that may allow them continue to make nutrition claims for probiotics.
However, now the entire register of approved claims is being challenged. In a dramatic move, a British health food association and Dutch food producers have issued legal proceedings against the commission, arguing that it used a "flawed and inappropri¬ate way" of assessing food claims. They want the entire register of approved and rejected claims to be scrapped, and the process recommenced.
In the meantime, food producers are facing several other challenges, such as broadcast¬ing authority codes, advertising standards restrictions, the debate on calorie information on restaurant menus and complying with the new Food Information Regulation (FIR) by the end of 2014.
The Food Information Regulation 2011 alone will have a significant impact on food business operators at all stages of the food chain. It sets out nutritional information that must be included on food packaging, such as the energy value and the amount of fat, carbohydrates, protein, sugars and salt, with minimum font size specified and rules on placement of the mandatory information.
As a result, packaging and labels will have to be redesigned for existing product lines. Others in the food chain, such as suppliers of bulk products to caterers, online retailers and restaurants, will face additional obligations which will add to their costs, as well as presenting compliance challenges.
As for Minister for Health Dr James Reilly giving the restaurant industry six months to make a voluntary code work, the minister can rely on the FIR to strengthen his hand. For the first time, EU information rules will apply to food which is not pre-packaged, such as that sold in restaurants, school canteens and fish and chip vans.
While the EU is insisting only that restaurants make allergen information available, it has allowed member states to decide whether to adopt national measures requiring other nutritional information to be made available to consumers.
This has given the minister a green light to adopt legislation in Ireland insisting on calorie content and any other nutri-tional information being provided by restaurants and mass caterers with non-pre-packed food.
The Advertising Standards Authority of Ireland (ASAI) has also been policing alleged misleading advertising of food and drink products. Increasingly, the ASAI has focused on the science behind the advertising, particularly the European Food Safety Authority's conclusions.
For example, in relation to a press advertisement claiming that pomegranate juice played a role in lowering blood pres¬sure and reducing stress, the ASAI considered commis¬sioned research and the EFSA's scientific opinions. It upheld the complaint on the basis that the health claims had not been substantiated.
The ASAI may become even more relevant to advertising in the digital space. Since 2009, its remit includes advertisers' own websites. The ASAI exercised this power last year in reviewing the organics section of Glenisk's website, partially upholding a complaint.
Now the ASAI proposes to extend its remit to cover activity by advertisers on social media platforms and non-paid for space, which was traditionally outside its remit. (Consultation on the proposals closed on July 9.)
As if that were not enough, the Broadcasting Authority of Ireland has proposed amendments to the diet and nutrition section of the children's commercial communications code, starting a debate on whether cheese is a healthy food. That debate has been aired in the Dail, with Simon Coveney, the Minister for Agriculture, opposing moves to categorise cheddar cheese as a 'less healthy' food.
The winner of that tussle won't be known until the BAI's next publication in the autumn. Other foods falling foul of the British nutrient profiling model include many cereals, mayonnaise and sausages.
All these changes in food regulation will take time to digest — perhaps over a bowl of prunes, enticingly promoted with the EU-approved claim: `Prunes can contribute to normal bowel function.'
For more information, contact, Wendy Hederman, Partner at firstname.lastname@example.org or +353 1 614 5857.
The content of this article is provided for information purposes only and does not constitute legal or other advice. Mason Hayes & Curran (www.mhc.ie) is a leading business law firm with offices in Dublin, London and New York. © Copyright Sunday Business Post.