British Lion Egg Products – The Clock is Ticking

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On 16th May 2012, after a 21⁄2 year delay, the EU Commission adopted a Regulation that sets out a list of just 222 authorised health claims that can be used on food labelling and in related advertising. The aim is to protect consumers from claims that are misleading or insufficiently supported by scientific evidence.

A health claim states or implies a specific relationship between a food or ingredient and health, and is caught by the Regulation when used in the labelling, presentation or advertising of foods aimed at the end consumer. Health claims subject to the new Regulation (for example, claims on a link between Vitamin C and the immune system or between Omega 3 and the joints) should be distinguished from nutrition claims (for example, “source of vitamin C” or “low-fat”) for which EU rules are already well established.

The EU Register sets out details both of the authorised health claims and of those that have been rejected. You can view the Register here.

The Commission originally received submissions of over 44,000 claims, but this has been hugely reduced by a process of de- duplication and consolidation, and the remaining claims were then subjected to detailed scientific scrutiny by the European Food Safety Authority (“EFSA”). In addition to the 222 claims that made it all the way to approval, there are also some categories of claim for which the evaluation process is not yet complete: the Register will be updated in due course once a decision has been reached for them.

There is now a six month grace period until 1st December 2012 during which food business operators can adapt to the requirements of the Regulation. However, I recommend that you tread with caution because in the interim health claims must still accord with the national provisions of the country in which they are made. This means any health claims made in marketing communications must comply with the CAP and BCAP Codes in the UK.

For the past couple of years, the Advertising Standards Authority (“ASA”) has been taking into consideration the EFSA scientific opinions, which have been available for some time, in the course of their investigations. My view is that the ASA is only likely to be persuaded to take a contrary view to that of EFSA and the EU Commission if an advertiser has additional groundbreaking evidence to substantiate the health claim which would not have been considered by EFSA. This is a high hurdle.

The law and regulation on health and nutrition claims on foods and food supplements is a complex and tricky area. For further information, please contact Helen Bowyer.

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