Despite the fact that no health claims have been approved for probiotics under the legislation, a legal expert has suggested that some products could obtain derogations under certain circumstances.
Speaking at a virtual online conference on prebiotics and probiotics yesterday, organised by sister title NutraIngredients.com, Sebastián Romero Melchor, founder and managing partner of Food Law Consultants, highlighted potential justifications that owners of probiotics might use to avoid changes to the labelling of their products.
Melchor said these potential loopholes covered products that could fall under nutritional labelling or “nutrition claim” rules; where the probiotic bacterial strain was used as a “generic descriptor”; or formed part of the name of a product, which had been traditionally used.
Worth exploring
“This is an avenue worth exploring, if otherwise consumers would be confused,” said Melchor. He argued that making the case successfully would probably hinge on whether it was in consumers’ interests to ensure their continued right of access to information.
Melchor noted that two legal cases are awaiting rulings in Germany in this area. They offered “encouraging” hope for manufacturers seeking to retain some form of probiotic labelling.
The European Food Safety Authority’s (EFSA’s) panel on dietetic products, nutrition and allergies (NDA) has, so far, rejected 276 probiotic dossiers submitted for health claims assessment. They were rejected for a variety of reasons – largely because they failed to sufficiently “characterise” the particular probiotic strains they used.
Under the legislation, products labelled as making a health claim that are not included on an EU list of approved health claims will have to be removed from supermarket shelves six months after the law comes into effect some time this year. By 2013 many products currently labelled as probiotics will have to be removed from the market.
Manufacturers that try to get around the rules by using “implied claims” are unlikely to escape enforcement, added Melchor.
Approved list
Melchor said products that were not already on the approved list (published in December) but which had been accepted for resubmission on the grounds that further evidence needed to be assessed, would also benefit from an extension to the deadline. Opinions on the reassessed dossiers are expected by June 2012, he added.
“Those that made it onto the second assessment can continue to be used, provided they comply with national rules,” said Melchor. “Those claims that got lucky and are being reassessed by EFSA … I don’t see why we shouldn’t be a little bit more optimistic.”
Some manufacturers also hope that the new scientists joining NDA panel, when it is reformed in June 2012, will be more open to the huge body of evidence supporting the efficacy of probiotics in disease reduction.
To attend NutraIngredient.com’s virtual conference, click here.