Coping with health claim hurt

One of the most fiercely debated and amended pieces of European Union food law history is playing out before our eyes, and its effects are beginning to be felt.

And in some cases the nutrition and health claims regulation is proving rather painful, as demonstrated by a scan of the European Food Safety Authority’s article 14 list of around 220 claims.

Something like 10 of those children’s and disease reduction claims have been withdrawn with major companies like Nestle, Unilever and Valio as well as the Irish Dairy Council and the France-based Association of the Food Industries for Particular Nutritional Uses of the European Union (IDACE), among those that have decided their submissions are not up to scratch.

Two article 13.5 claims - one from Slovenian company Mlekarna CELEIA for a product containing a Beneo Orafti ingredient (bone strength) and one from Valio (the claim is not referenced) have also been withdrawn.

A Beneo Orafti spokesperson said its own bone strength claim remained with EFSA for adjudication.

Companies may resubmit at some point in the future but for now these parties have decided it is better to pull claims from the process than risk the fall-out of a negative EFSA opinion.

Image problem

The naysayers have long warned the process will devastate industry if health claims that in many cases are already authorised in some Member States are scrapped by EFSA.

EFSA’s gold standard scientific approach means it is doing a lot of claim scrapping and the economic chickens are coming home to roost and they are hardly laying golden eggs.

EFSA’s opinions may not be legally binding but they are highly influential.

Some negative opinions have already been picked up by the mainstream media. In at least one case, this has put the company and the claims it has been making about popular products under the microscope and raised doubt about the product's effectiveness.

The company’s public image suffered and in response it altered some of its marketing materials. The effect on product sales is yet to be determined, but some analysts predict it will be significant.

No wonder the withdrawals. This is serious mum.

Problem child

To say the nutrition and health claims regulation had a painful birth is an understatement. It was amended more than 600 times over many years before it became law in 2006. Some would call it an ill-conceived birth and liken the result to a problem child.

Those who proclaimed the potentially devastating effect of the legislation are beginning to wear knowing, if not contented, looks, and a mild sense of panic is pervading sections of industry.

Member State food agencies are following up on EFSA’s decisions and re-investigating claims that may have formerly been approved.

In the meantime a scientific scramble is occurring to gather evidence to boost dossiers still in the game, those that may be resubmitted, or those dossiers that are yet to enter the process.

As mentioned above, some appear to have given up the ghost amid the realisation their evidence would not get them over EFSA’s scientific bar. And that despite, in some cases, spending hundreds of thousands of euros on those very same claims.

Rationalisation?

The pro-EFSA approach camp welcomes this. The CEO of one of Europe’s largest ingredients suppliers angrily told this publication last week that “it was about time the snake oil salesmen in this industry were weeded out”.

His anger was amplified by his perception that the bad publicity that could gather around an EFSA negative affected not only the company involved, but the whole sector.

If one of the aims of the health claims process is to build consumer confidence in healthy food messaging, a mass rejection of those claims by an apparently rational and independent body can only do the opposite.

The anti-EFSA approach camp is starting to think of other solutions. Challenging EFSA’s ‘gold standard’ approach in the European Court of Justice is one mooted option.

Others are pinning their hopes on the EC and the Member States interpreting EFSA’s opinions ‘loosely’. The first of these opinions are due to be processed in the coming months. There is room for interpretation and moderation but a literal translation of the opinions is also a distinct possibility.

With the entire process due for resolution in little more than 12 months, 2009 promises to be a very interesting year for industry.

Seat belts on please.

Shane Starling is the editor of NutraIngredients.com. If you would like to comment on this article email shane.starling'at'decisionnews.com.