This lengthy report, published by the European Parliament in September 2023, provides an important review and update on the law relating to nutrition and health claims made on foods. It reminds readers of the link between this area of law and other EU initiatives such as the farm to fork strategy, the Green Deal and Beating Cancer.
The Commission’s evaluation report into the Nutrition and Health Claims Regulation (NHCR) and related study identified two key areas in which the legislation has not yet been implemented.
The first of these is the issue of nutrient profiles. Article 4 of the NHCR states that:
‘By 19 January 2009, the Commission shall establish specific nutrient profiles, including exemptions, which food or certain categories of food must comply with in order to bear nutrition or health claims and the conditions for the use of nutrition or health claims for foods or categories of foods with respect to the nutrient profiles.’
In its Executive Summary, the Report notes that nutrient profiles are ‘essential in facilitating the shift towards healthy and sustainable diets and harmonised mandatory nutrition labelling to enable consumers to make conscious food choices.’
The second issue relates to botanicals and the ‘on hold’ list of claims. Botanicals may be used in food products and in medicines and where there is any doubt about the status of a product, the medicinal products regime prevails. Nevertheless, due to the state of the law, a product containing such an ingredient might be classified as a food by one member state and as a medicinal product by another member state.
The Report notes that the uncertainties created by the failure to introduce nutrient profiles and the ‘on hold’ list for botanicals negatively affects business innovation.
In addition to highlighting those two issues, the Report provides a very useful analysis of the case law of the Court of Justice of the European Union on Regulation 1924/2006. This reviews how the Court has dealt with issues such as the definition of a health claim, the use of general health claims and the concept of a commercial communication.
The Report can be accessed at:
https://www.europarl.europa.eu/RegData/etudes/STUD/2023/747456/EPRS_STU(2023)747456_EN.pdf
Ian Thomas is a lawyer practising in Ireland and in England and Wales. He is very experienced in advising and representing food businesses across a wide range of food related matters and if we can help to solve your issues or advise on your compliance obligations please get in touch – ian@ianthomasassociates.com or ian.thomas@6pumpcourt.co.uk.