The EC Regulation 907/2013 sought to clarify potential consumer confusion, saying: “[T]o ensure a high level of protection for consumers, the use of claims should not be false, ambiguous or misleading. The same principle should apply for the use of generic descriptors (denominations) which could imply an effect on health.”
Companies using a generic descriptor (denomination) - which could refer to things like digestive biscuits and pre- or probiotics - for at least 20 years within an EU member state prior to the passing of this new regulation may apply for exemption from the ban.
National authorities will be able to exercise their own faculty of judgement to determine the typical reaction of the average consumer in each case. The ruling comes after much speculation as to what terms such a regulation would be based upon.
Compromising commercial free speech in the food sector?
The Alliance for Natural Health International (ANH-Intl) criticised the law, asking whether it is not the European Commission’s latest plan to curb commercial free speech.
“There’s no doubt in my mind that the amending regulation has been rigged to prevent generic descriptors being used as a softer option for those who have yet been able to benefit from EFSA-authorised health claims,” said Dr Robert Verkerk, executive and scientific director at the organisation.
Verkerk told NutraIngredients that the regulation may look reasonable at face value but that the devil is in the detail.
“Proving that a generic descriptor has been used in a given member state for 20 years will be the easy bit. There are elements of the application process that are likely to present major sticking points that in practice will prevent it being used for many of the food or beverage types that many had hoped it might provide for. That includes probiotics, prebiotics, cough drops and digestives," he said.
“The big obstacle will be the additional information that is required on request by Member State authorities, namely the need to show consumer understanding and perception of the implied health effects, as well as evidence that the consumer links the generic descriptors to the particular class of food or beverage."
Verkerk said that this would require major market research likely to only be possible for the big food and beverage companies. “Even these will be problematic,” he added. “Given that authorities could turn around and say the effect is misleading or ambiguous, a central plank of the Nutrition & Health Claims Regulation itself.”