Probiotic labelling bid shaky, says top legal group

During a food and drink seminar organised by Eversheds earlier this month, Katharine Vickery, a partner with the firm, doubted that the attempt by the Yoghurt & Live Fermented Milks Association​ (YLFA) to get probiotic accepted as a generic descriptor would be successful.

The reason it was unlikely to be successful, she said, was because the term was too closely associated in the average consumer’s mind with a health claim and there was insufficient history of its use in the market.

Generic descriptor​

A generic descriptor is a term which has traditionally been used to indicate a particular class of food and beverage and which, like ‘tonic water’, ‘digestive biscuits’ and ‘cough drops’, could imply an effective on health. The EC has laid down the procedures necessary to exempt generic descriptors from associated health claims.

Evidence of presence in the market of EU Member States (MSs) for over 20 years has to be demonstrated. Consumers also have to link the generic descriptor with the specific class of food or drinks mentioned.

“I think​ [getting approval for probiotics as a generic descriptor] is a struggle,”​ said Vickery. “It is one of those products that is on the cusp of a health claim, whereas a tonic water or digestive biscuits are kind of everyday common products. But probiotics has health implications associated with it.​

‘Around for donkey’s years’​

“My understanding of generic descriptors is to capture things that have been around for donkey’s ​years – everybody kind of knows and understands what they are and don’t associate them necessarily with giving you a health benefit. And I don’t think probiotics fall into that category.”​

The YLFA, whose members include probiotic yogurt manufacturers Danone and Yakult and associate members Danisco and Chr Hansen, officially submitted an application for recognition of probiotics as a generic descriptor in December 2012 through two MSs. It is still awaiting the outcome of the EC’s deliberations.

The YLFA’s application followed the failure last year of probiotics to achieve recognised health claim approval from the European Food Safety Authority.

Since the end of 2012, the industry has been subject to a de facto ban on the use of the term probiotic in the EU. While the big players, such as Danone and Yakult, have stopped using the word probiotic as a marketing message on labels, products using the term are still available on supermarket shelves in the UK.

According to Euromonitor International​, the fortified/functional yogurt market grew from €5.7bn in 2007 to €6.6bn in 2012, an increase of 15%. The YLFA claims probiotic drinks in particular have contributed to fermented milks market growth.