At the table were Henry Dixon, the owner of UK-based food industry PR firm, Barrett Dixon Bell; Patrick Coppens, a regulatory expert from European Advisory Services in Brussels and Cedric Bourges from the French claims consultancy, NutraVeris.
Coppens said the threat of a challenge was always going to exist if an increasingly desperate industry felt it was being damaged unfairly by the regulation.
“The way the law has been written and the way the law has been implemented is far from ideal and leaves a lot open to discussion,” Coppens said. “If you are with your back against the wall and you think that is unjustified because you think the law is badly written and implemented it is your fundamental democratic right to go to the courts so why would a company not do that?”
“Wherever there are diversions in implications there is the possibility to ask the courts what is the correct interpretation. I don’t know that it is going to happen but it may happen.”
Learning process
“What we are trying to do now is solve this learning process in the best way possible and that explains the delay in the number of decisions taken by the European Commission because it is taking its time to reflect on all possible options and consequences before taking decisions. Also for the Commission it is a learning process.”
Dixon added that any measures to delay the “piecemeal adoption” of claims in batches would add to the fairness of the regulation’s implementation.
“If everything could be adopted at the end of the process that would give everybody more time to sort things out,” he said. “It would remove some of the anti-competitive issues that have been raised. It would give more time for national governments and industry trade bodies to sort things out in a rational and sensible way.”
Coppens added that the way in which the first batch of EFSA opinions published last October passed into the law was crucial to how the rest of the process may pan out.
“It is very important and sets a precedent and that explains why it is so slow. The member states are also very intensively discussing this and that takes time.”
Batch themes
Bourges observed that the batches appear to have a thematic bent which could have a moderating effect on any economic distortion that may eventuate if and when the opinions become law.
“On a batch-by-batch analysis they seem to focus on application. October 2009 could have been called the joint batch and February 2010 could have been called the antioxidants batch. Publishing in batches remains a big problem but companies selling say joint health products will be facing the same problem at the same time.”