• Caution! Eating a Big Bag of Cookies Every Day Could Kill You...European Union Adopts Broad New Food Marketing Rules
  • June 2, 2006
  • Law Firm: Reed Smith LLP - Pittsburgh Office
  • Soon, consumers in the European Union will have to face in black and white the potential consequences of their eating habits. For example, food products soon will have to contain a warning concerning the risks presented by consuming a food product in excess.

    That’s just one of the many requirements contained in a comprehensive set of regulations addressing nutrition and health claims made in labeling and advertising for foods recently approved by the European Parliament and Council of the European Union.

    The rules establish parameters for foods products making claims concerning calories, fat, sugar, salt, fiber, protein, vitamins and minerals. The regulations address circumstances under which terms such as “light” and “reduced” may be used, as well as claims concerning weight loss, reduction of disease risk and other health issues.

    The Regulation, which hasn’t been assigned its official number yet and which will become effective six months after being published in early 2007, creates a two-track system for companies wishing to make health claims.

    Companies either can ensure their food products fit into one of the prescribed “nutrient profiles” that are to be established by the Commission, and market such products with preapproved health claims to be established; or, companies may propose to use health claims not preapproved by the Commission.

    However, businesses opting to take the latter route have a high standard to meet.

    “Health claims should only be authorized for use in the Community after a scientific assessment of the highest possible standard,” the rules state.

    Nutrient Profiles

    The Commission is directed to establish nutrient profiles for food and/or certain categories of food, and set conditions for the use of nutrition and health claims made concerning food products that fall within each profile. The profiles will address:

    • The quantities of nutrients and other substances contained in the food, such as fat, saturated fatty acids, trans-fatty acids, sugars and salt/sodium
    • The role and importance of the food (or categories of foods) in the diet of the general public as well as risk groups such as children
    • The overall nutritional composition of the food and the presence of nutrients scientifically recognized as having an effect on health

    The European Food Safety Authority has 12 months to develop recommendations for implementing the nutrient profiles.

    To make health claims that haven’t been prescribed already, companies must submit a formal application to the Commission, and the European Food Safety Authority will make a determination as to whether the proposed claims are adequately substantiated through scientific evidence.

    The Commission will keep a public Register of all health claims that have been assessed and approved. Companies that invest in research to prove their claims will be able to protect their investment in studies, trials and the like for seven years before they become publicly accessible.

    Qualifications and Restrictions

    Health claims that are allowed must be qualified with accompanying information indicating:

    • The importance of a varied and balanced diet and a healthy lifestyle
    • The quantity of the food and pattern of consumption required to obtain the claimed beneficial effect
    • Persons, if any, who should avoid consuming the food
    • Health risks presented by consuming the product in excess

    Marketers are forbidden from making claims that: 1) suggest that health could be affected by not consuming a food product; 2) make reference to the rate or amount of weight loss; and 3) cite individual recommendations of doctors and health professionals.

    The Regulation includes a prohibition on alcoholic beverages from making health claims, other than those that refer to a reduction in the alcohol and calorie content.

    In addition, the rules address issues such as making comparative claims.

    Nutritional claims not authorized by the new rules are grandfathered in for a period of
    12 months. Trademarks have a transition period of 15 years to meet the new requirements.

    Why This Matters:  All prepackaged food products sold within the EU member states are covered under the new regulations. Companies manufacturing and marketing such products will need to become familiar with the rules and change their marketing practices to comply with the requirements. In addition, some companies may decide to reformulate their products to meet certain of the “nutrient” profiles to be established by the Commission so they can make desired health claims.