UK: Nutritional criteria – which one?

Last Updated: 22 December 2005
Article by Mark Tyler and Jessica Burt

The Food Standards Agency (FSA) has been progressing both a voluntary signposting scheme for packaged foods and a nutritional criteria to the Office of Communications (OFCOM) for the restriction of broadcast advertising for certain foods. Each has a different underlying analysis of how food properties are to be assessed and promoted.

The FSA indicated in November 2005 that in relation to their proposed voluntary measures of providing clear ‘signposting’ on foods that out of a choice of multiple traffic lights (MTL) (red, amber or green for each element of total fats, saturated fats, sugars and salt in a product on packaged food labels) and colour- coded guideline daily amount (CGDA) formats, they are likely to support the ‘multiple traffic lights’ scheme. Currently the Agency is consulting with consumers and the food industry on this. This consultation closes on 8 February 2006 and can be viewed at:

http://www.food.gov.uk/foodindustry/Consultations/consulteng/signpost2005eng

On 6 December 2005 the FSA handed over their final nutrient profiling model to OFCOM. This model is intended to provide a tool for categorising foods on the basis of their nutrient content. It has been developed to seek to reduce the amount of advertising directed at children for foods that are found to be, according to this criteria, high in saturated fat, sugar or salt. To view the nutrient profiling model, click here:

http://www.food.gov.uk/healthiereating/nutlab/nutprofmod

However, foods deemed "high" in certain categories under the signposting system may not necessarily be deemed "less healthy" under the nutritional criteria. This underpins the limited scope of the MTL for signposting. Instead of recommending a ‘guideline daily allowance’ table that would show the food as part of a general diet, the FSA will (if their proposals are followed up) be defining the totality of a healthy diet in the microcosm of a specific food and even then there are a level of nutrients being ignored by this being limited to total fats, saturated fats, sugars and salt; a policy that is clearly at odds with the general nutritional criteria being progressed by the FSA. This may result in a different regime for different sorts of promotions.

It would seem as though the FSA is seeking to introduce different criteria of evaluating a food according to which arena it is to be promoted within. This is hardly likely to achieve clarity and consistency for the consumer. Further, if Europe introduces its’ own nutritional criteria controlling what claims may be made on health and nutrition it is likely that these systems will be superseded in any event.

To view the full article in full, please see below:


Full Article

The Food Standards Agency (FSA) has been progressing both a voluntary signposting scheme for packaged foods and a nutritional criteria to the Office of Communications (OFCOM) for the restriction of broadcast advertising for certain foods. Each has a different underlying analysis of how food properties are to be assessed and promoted.

The FSA indicated in November 2005 that in relation to their proposed voluntary measures of providing clear ‘signposting’ on foods that out of a choice of multiple traffic lights (MTL) (red, amber or green for each element of total fats, saturated fats, sugars and salt in a product on packaged food labels) and colour-coded guideline daily amount (CGDA) formats, they are likely to support the ‘multiple traffic lights’ scheme. Currently the Agency is consulting with consumers and the food industry on this. This consultation closes on 8 February 2006 and can be viewed here.

On 6 December 2005 the FSA handed over their final nutrient profiling model to OFCOM. This model is intended to provide a tool for categorising foods on the basis of their nutrient content. It has been developed to seek to reduce the amount of advertising directed at children for foods that are found to be, according to this criteria, high in saturated fat, sugar or salt. To view the nutrient profiling model, click here.

However, foods deemed "high" in certain categories under the signposting system may not necessarily be deemed "less healthy" under the nutritional criteria. This underpins the limited scope of the MTL for signposting. Instead of recommending a ‘guideline daily allowance’ table that would show the food as part of a general diet, the FSA will (if their proposals are followed up) be defining the totality of a healthy diet in the microcosm of a specific food and even then there are a level of nutrients being ignored by this being limited to total fats, saturated fats, sugars and salt; a policy that is clearly at odds with the general nutritional criteria being progressed by the FSA. This may result in a different regime for different sorts of promotions.

It would seem as though the FSA is seeking to introduce different criteria of evaluating a food according to which arena it is to be promoted within. This is hardly likely to achieve clarity and consistency for the consumer. Further, if Europe introduces its’ own nutritional criteria controlling what claims may be made on health and nutrition it is likely that these systems will be superseded in any event.

What nutritional criteria ‘succeeds’ is likely to eventually be used to underpin a whole host of measures in relation to food marketing:

OFCOM

Ofcom will consider how the nutritional model provided by the FSA could be applied in its consultation looking at restrictions on broadcast advertising. This is likely to be used to decide when, where and how frequently certain advertisements and promotions appear, the use of cartoon characters, role models, celebrities and possibly the requirement for balanced messages in advertisements. The consultation is expected to be published in early 2006.

The nutritional criteria provided that foods exceeding a threshold for saturated fat, energy, sodium or sugar (i.e. food or drinks that score 11 or more points for ‘A’ nutrients) are not allowed to score for protein unless they contain high levels of fruit, vegetables and/or nuts. (This is achieved if it contains >80% fruit, vegetables or nuts at a maximum of 5 ‘C’ points - nuts are to be scored in the same way as fruit and vegetables.) Up to 5 ‘C’ points are also provided for fibre and protein. Full information may be accessed here.

If a food scores less than 11 ‘A’ points then the overall score is calculated as follows:

Overall score = (total ‘A’ points) minus (total ‘C’ points)

If a food scores 11 or more ‘A’ points but scores 5 points for fruit, vegetables and nuts then the overall score is calculated as follows:

Overall score = (total ‘A’ points) minus (total ‘C’ points)

If a food scores 11 or more ‘A’ points but also scores less than 5 points for fruit, veg and nuts then the overall score is calculated as follows:

Overall score = (total ‘A’ points) minus (fibre points + fruit, veg and nuts points only) [i.e. not allowed to score points for protein]

A food is classified as ‘less healthy’ where it scores 4 points or more.

A drink is classified as ‘less healthy’ where it scores 1 point or more.

Signposting

The use of "high" "medium" and "low" criteria within the signposting proposed system has been stated to be based on the EU Regulation on the use of Nutrition and Health Claims which has been used to set the "low" band and the FSA’s criteria for "high" is based on current FSA guidance on what constitutes "a lot" of a particular nutrient and is based on a quarter of the GDA for fat, saturated fat, and salt. To view the FSA’s update on nutritional criteria, click here.

(Total sugars GDA has not yet been finalised.)

This criteria is extremely broad and is not consistent with the level of analysis the nutritional criteria provided to OFCOM seeks to achieve. It is anticipated that a food might be widely promoted for healthy properties in the broadcast media and yet still (if the voluntary scheme is complied with) receive one or more "red traffic lights" on its product front of pack labelling, which the health conscious consumer may intuitively wish to avoid, thus depriving themselves of potentially useful nutrients. There will therefore be a mixed message from any promotional campaign and indeed less clarity and choice provided to the consumer.

Health & nutritional claims

The European Commission has now formally adopted the proposal to regulate nutrition and health claims made on foods. The Regulation will now undergo a second reading by both the Parliament and Council, and is expected to be finally adopted in 2006. A copy of the proposed regulation may be accessed here.

One contentious area of the Regulation is that the EU Commission maintains that foods bearing a claim will automatically be perceived as "good" foods by consumers. The Regulation proposes to restrict the use of claims on some foods based on their nutritional profile.

An argument against this position is that it is a benefit to consumers to be provided with the information that will assist them in obtaining the most suitable product for them and their chosen lifestyle. Therefore, an important question to ask is whether or not a stricter stance on the promotion of the health and nutritional properties of food products will actually promote consumer choice or end up restricting it.

Within 18 months of adoption of the Regulation, the Commission currently aims to have evaluated nutritional profiles in close consultation with stakeholders and based on the opinion of the European Food Safety Authority (EFSA) and in conjunction with the Member States in the Standing Committee for the Foodchain and Animal Health.

In the UK, the proposed ‘signposting’ criteria for packaged foods in respect of "low" is said to be based on levels to be set by the Regulation, in which case it may be expected that this system will be amended to reflect any subsequent nutritional criteria adopted by Europe in relation to any perceived "high" levels of certain nutrients in food.

Whilst it is expected that the FSA nutritional criteria provided to OFCOM will feed into whatever criteria is eventually adopted in Europe it is by no means certain that the ‘scoring’ system of addition and subtraction will be adopted.

Summary

The UK is therefore in the position that the FSA is claiming to want clarity and consistency for the consumer, and substantial industry resources in funding their proposed method of achieving this, but is advancing different evaluation schemes that are likely to be superseded by Europe at some point in the not to distant future.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 20/12/2005.

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