The botanical product segment is growing across Europe as people look for more natural ways to improve their health EAS said.
If the situation is not addressed, then the botanical industry could find further growth and innovation difficult.
Speaking on a pod cast, food law manager Patrick Coppens said yesterday that individual member states have their own rules for whether to allow botanicals on the bloc, and the principle of mutual recognition is often ignored by member states.
Currently the EU is in the process of harmonizing rules for dietary supplements and fortified foods under the 2002 Food Supplements Directive, which seeks to unify the upper and lower levels for both minerals and vitamins across the EU.
But the regulation will not cover botanicals.
Coppens said: "There are no European harmonised rules, there are national rules that apply and some member states have very specific rules.
There are some products that may be considered as a medicinal product in one member state and may be a food supplement in another."
In Germany for example, the courts have classified cinnamon-containing dietetic foods carrying health claims as medicinal products.
They cannot, therefore, be marketed as foods.
However, cinnamon-containing food supplements sold without any health claims will not be affected.
Coppens added: "In principle that should not be a problem because you have the principle of mutual recognition that applies and one product that is lawfully manufactured in one member state should be able to move to all the other member states.
But given that national law applies and member states do not apply the principle of mutual recognition this means you have to apply national rules."
Another aspect of legislation which is being harmonised by the Commission is to do with regulating what health and nutrition claims can be made for products.
Under the proposals, regulation (EC) No 1924/2006, which came into force in the UK from 1 July 2007, any food product claiming to have a health, nutritional or disease related benefit, must meet a list of European Commission-approved wording.
However, Coppens said these rules have not made it clear exactly how botanical products can apply.
He said: " The article 13 list will be a list of claims that are approved and will be decided on by the EC by 2010.
When that list is ready member states will compile this and ask EFSA for an opinion and in the end will approve and disapprove.
" Companies may have specific claims for their products supported by their own evidence, but it is not clear if these can be done today or wait until 2010 before they can submit an application ."
The EAS earlier this year predicted a long wait for companies before harmonisation is carried out.