Ireland: Food & Agribusiness Group Update - February 2016

Last Updated: 19 February 2016
Article by Isabel Foley, Deborah Spence, Orla M. Clayton, Danielle Conaghan, James Lawless and Ciara Farrell
Most Read Contributor in Ireland, October 2018

INTRODUCTION

The purpose of this briefing is to provide an update on two recent developments in the area of nutrition and health claims, and advertising of food generally, both at an EU and Irish level.

The European Commission has identified nutrition and health claims on food products as an area of focus at a European legislative and policy level, as evidenced by the inclusion of the relevant legislation in last year's Better Regulation Communication (the "Communication"). Further to the Communication guidelines, the European Commission published a Roadmap on the evaluation of Regulation (EC) No 1924/2006 on nutrition and health claims made on foods 1 (the "2006 Regulation"), in October 2015 which outlines the purpose, content and scope of the evaluation. The Communication provides for evaluations and fitness checks across a wide range of policy areas and legislation. A refocused emphasis on nutrition and health claims can also be seen at a national level with the inclusion of new rules regulating the use of such claims in the seventh regulatory code recently published by the Advertising Standards Authority for Ireland ("ASAI").

In this briefing we look at the recent Roadmap published by the European Commission and the new advertising standards code issued by the ASAI.

BETTER REGULATION COMMUNICATION

Better Regulation Communications are a tool used by the European Commission to ensure that EU policies are drafted, implemented and reviewed in a transparent, empirically-reliable manner with appropriate input from involved stakeholders. The process starts with the publication of a Roadmap (or an Inception Impact Assessment if greater detail is required) by the European Commission, which allows industry stakeholders to submit their observations on existing legislation and planned initiatives to the European Commission.

The 2006 Regulation was brought into force to enable EU consumers to make healthier and more informed choices in respect of their food consumption. It regulates the types of nutrition and health claims which can be used in the labelling, presentation and advertising of food products. Under the 2006 Regulation, there are two types of claims: (i) nutrition claims and (ii) health claims.

As defined in the 2006 Regulation, a "nutrition claim" is "any claim which states, suggests or implies that a food has particular beneficial nutritional properties..." due to its energy value and/or the nutrients or substances it contains such as "source of protein". A "health claim" is "any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health". An example of a health claim would be "calcium contributes to normal muscle function."

The 2006 Regulation provided that health claims were to be submitted to the European Food Safety Authority ("EFSA") so that the science behind each claim could be assessed and considered as part of an EFSA opinion.

Regulation (EU) 432/2012, which established the list of approved health claims, 2 (the "2012 Regulation") came into force in June 2012. In December 2012, the list of approved claims came  into effect. Under the 2006 Regulation and 2012 Regulation, food business operators were obliged to remove any claims which were rejected by the EFSA and the European Commission from any packaging, labelling and marketing materials attached to their products. We reported on this when the 2012 Regulation came into force in June 2012 (read our June 2012 update here).

Although the 2006 Regulation was implemented in July 2007 (with various transitional periods) two distinct and separate areas, health claims on plants and nutrient profiles remain, as yet, unregulated at a centralised EU level. While health claims related to plant-based foods and plant-derived ingredients were submitted in the context of the establishment of the list of permitted health claims, only a small number of such health claims have been authorised. The Roadmap will evaluate whether the prescribed rules under the 2006 Regulation are adequate in respect of nutrient profiles and health claims on plants (and their preparations). In this context the evaluation will, where necessary, extend to other regulatory aspects, such as safety requirements for the use of plants and their preparations in food.

Transparency and stakeholder involvement are vital for the success of the evaluation. There will be an open public consultation, a stakeholder consultation and in addition, one external study will be commissioned and will also feed into the evaluation. The results of the evaluation will inform the next steps to be taken by the European Commission.

CODE OF STANDARDS FOR ADVERTISING AND MARKETING COMMUNICATIONS IN IRELAND

On 17 September 2015, the ASAI, an independent, self-regulating body set up, and financed by, the advertising industry to promote high standards in marketing communications (advertising, promotional marketing and direct marketing), published the seventh edition of the Code of Standards for Advertising and Marketing Communications in Ireland (the "Seventh Code"). The Seventh Code will be effective from 1 March 2016 and replaces the existing code which remains effective until that date.

As with previous editions of the Code, the Seventh Code is a form of soft law, subordinate to legislation, regulating advertising standards in Ireland. ASAI membership encompasses all major advertisers, agencies and media forms (broadcast, outdoor, digital and print). All members of the ASAI are required to abide by the Seventh Code and are prohibited from publishing any advertising or carrying out any promotional activity in contravention of the Seventh Code. Any ASAI member who contravenes the Seventh Code may be subject to disciplinary action by the ASAI. The ASAI recommends that in any contractual arrangements concerning commercial marketing or published terms and conditions (and where such contract is to be governed by Irish law) a clause is included to the effect that the provisions of the Seventh Code, and any adjudications made by the ASAI, will be adhered to.

The Seventh Code contains eighteen sections regulating a wide range of areas including food and non-alcoholic beverages, gambling, e-cigarettes and health and beauty. This briefing focuses only on the section of the Seventh Code dealing with Food and Non-Alcoholic Beverages, in particular nutrition and health claims.

NUTRITION AND HEALTH CLAIMS

Under the sixth edition of the Code which is currently in force, the rules in respect of permissible nutrition and health-benefit/ health-related claims are broadly stated and are required to be (i) accurate and not misleading; (ii) scientifically-based and conveyed in a manner consistent with the evidential basis for the claim; and (iii) objectively supportable on a clearly understandable basis.

Under section 8 of the Seventh Code, the ASAI has significantly expanded the rules in respect of nutrition and health claims which can be permissibly claimed in marketing communications for food products. For the purposes of section 8 of the Seventh Code, the rules in respect of food products apply equally to food supplements and non-alcoholic beverages. The revised section 8 under the Seventh Code will ensure that the advertising of nutrition and health claims in Ireland is compliant with European-led legislation and policy in this area.

The Seventh Code refers the reader to two EU regulations (and implementing legislation). Firstly, the Seventh Code refers to Regulation (EU) No 1169/2011 on food information to consumers,3 as amended.4 This Regulation sets out the requirements for the provision of food information to consumers, in terms of labelling, advertising and presentation of foodstuffs. Secondly, the Seventh Code refers to the 2006 Regulation on nutrition and health claims made on foods which we have discussed above. The Seventh Code advises advertising industry stakeholders to seek legal advice on the legal effect of the 2006 Regulation.

Section 8 of the Seventh Code prescribes rules in regard to permissible and impermissible nutrition and health claims which may be used in marketing communications.

COMMENTARY

The evaluation of the 2006 Regulation at a Commission level and the revision of the Seventh Code highlight the increased attention given to nutrition and health claims by consumers and in correlation by lawmakers, policymakers and bodies such as the ASAI. These recent trends reinforce the importance of compliance with the relevant legislation by food business operators.

Footnotes

1 Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on food.

2 Commission Regulation (EU) No. 432/2012 of 16 May 2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children's develop­ment and health.

3 Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/ EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commis­sion Regulation (EC) No 608/2004.

4 This was implemented in Ireland by the Health (Provision of Allergen Information to Consumers in respect of Non-Prepacked Food) Regulations 2014 (S.I. 489/2014) and the European Union (Provisions on Food Information to Consumers) Regulations 2014

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions