As of December 2012, there are 222 permitted health claims that food and supplement companies can make under Article 13.1 of the Nutrition and Health Claims Regulation (NHCR). Furthermore, any hope that the claims rules could have been "liberalised" by the European Commission taking a softer stance towards generic have been dashed.
'Absurdly restrictive'
Dr Robert Verkerk – executive and scientific director at the Alliance for Natural Health (ANH) – an international non-governmental organisation that promotes natural and sustainable approaches to healthcare – told our sister publication Food Ingredients Health and Nutrition that EFSA's approach was "absurdly restrictive".
"Generic descriptors could have been a way of liberalising claims a little bit by saying, for example, 'lets see if we can call something a digestif when it's a not in fact a French alcoholic beverage, but a mixture of different foods that help digestion. However, it is very clear they want to make sure things like that don't happen.
"If you want to apply for a generic descriptor, you, as the applicant, need to prove that the consumer couldn't possibly interpret the claim as a health benefit. We've seen how difficult it is to prove cause and effect in relation to health claims, and now you have to prove that the consumer couldn't interpret something in a particular way."
Disclaimer approach
ANH has submitted documents to the Commission suggesting it adopts a disclaimer approach, similar to that adopted by the US Food and Drug Administration, which would state that non-approved generic descriptors have not been evaluated by EFSA.
"We know that they are not going to be keen to adopt that, but from our point of view we need to create a paper trail. Our lawyers have advised us that it is too early to have any successful judicial review on this, but we need to show we are providing alternatives."