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 foods1 (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.
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.
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 (S.I. 556/2014).
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.