The European Commission has adopted a list of 222 EU approved health claims for use on foods, which are permitted for use in commercial communications to consumers.

Regulation 432 / 2012 (establishing the list of approved health claims) was published in the Official Journal on 25 May 2012 and came into effect on 14 June 2012. The list itself will come into effect six months later, on 14 December 2012. This means that food business operators have between now and then to remove any of the claims which have been rejected by the Commission from any packaging, labelling and marketing materials attached to their products.

Background

Regulation 1924 / 2006 (on Nutrition and Health Claims made on Foods) provided that health claims under Article 13.1 were to be submitted to the European Food Safety Authority (EFSA) by 31 January 2008 so that the science behind each claim could be assessed and considered. Over 40,000 claims were submitted by member states and were whittled down in to a consolidated list of 4,600 claims. The vast majority of claims have been rejected with the 222 permitted claims, which have just been published, comprising the conclusion of that process. However, many claims are still on hold or under consideration and so, further additions to the permitted list of claims will be made on an ongoing basis. These health claims may continue to be used until EFSA's consideration is completed.

Examples of health claims which have been approved are "calcium contributes to normal muscle function" and "fluoride contributes to the maintenance of tooth mineralisation". Manufacturers should be aware that the health claims can only be used in conjunction with specific conditions which are also detailed in the recently published Regulation.

The permitted health claims are available to be checked on line, on the Community Register (http://ec.europa.eu/nuhclaim) as is a list of the claims rejected by EFSA. It is therefore possible for manufacturers to look at the permitted wording and the conditions on the use of a claim online.

Nutrition Claims

Pursuant to Regulation 1924/2006, nutrition claims i.e. claims which state, suggest or imply that a food has particular beneficial nutritional properties such as "source of protein" or "high fibre", can also be accessed on the Community Register. Claims relating to the reduction of disease risk and to childrens' development and health are outside the scope of this legislation. In addition, claims made in a non – commercial context, such as advice issued by public health authorities and bodies, are not caught.

The move is welcome in that it gives legal clarity to food business operators as to claims which can be made, subject to compliance with the stated conditions on the use of each particular claim. In addition the publication of the permitted list gives consumers confidence in that the claims have been rigorously assessed and approved at a European level and avoids claims that are misleading. However, the timeframe for compliance with the new Regulation is a challenging one. From 14 December 2012 on, products carrying claims, which have been rejected by EFSA would need to be withdrawn from the market (within the European Union). Member states will be responsible for enforcement. The precise means of enforcement are not yet clear and we will report further once enforcement provisions have been clarified.

In Summary

We recommend that food businesss operators carefully check existing packaging, labelling and marketing materials to ensure that only approved claims are used and that they comply with the conditions for use as set down by EFSA, as a matter of priority.

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.