Schwitters, author of the book Health Claims Censored, warns that in the future, the reach of the regulation could be extended to non-commercial communications, so that journalists, scientists and health professionals would be prevented from using prohibited terms such as ‘probiotic’.
“The NHCR is a legislative tool that redefines and recategorises language for the purposes of controlling all language that fits the definitions of the terms ‘claim’ and ‘health claim’,” Schwitters wrote recently on his blog.
Under the NHCR framework, mandatory information is fully controlled by the EU, which determines where, when and what must be said, printed or omitted. Schwitters claims that the NHCR shows that the EU has also begun controlling voluntary information, “by way of a cunning system that combines unconditional and total prohibition with conditional and selective authorisation,” in such a way that “the prohibition itself remains outside the reach of evaluation or judicial review”.
He cites the term ‘probiotics’ as an example of this. The EU’s position is that the term probiotic is an implied health claim, and since no probiotic has yet won a health claim under the NHCR, use of the word probiotic is currently unauthorised.
“This term is prohibited until the Union has determined on which conditions it may be used,” writes Schwitters. “The grounds for the prohibitor’s prohibition are never tested and cannot be questioned.”
He says the purpose of this system is placing information under, “full and unconditional control of the European Union’s legislature”.
“Users of information – meaning everyone – now find themselves in a world where the state not only controls the mandatory information but the ‘not mandatory’ information as well. A user of information must now first of all check whether the information is or isn’t mandatory. Then he must verify whether his use of the ‘non mandatory’ information meets the conditions set by the state in a public register of authorised language.”
Besides being concerned that under the NHCR commercial organisations can only communicate information that is permitted by the state, Schwitters warns that this method of ‘information control’ could potentially extend to non-commercial users.
The regulation currently only applies to ‘commercial communication’, but Schwitters argues that the definitions apply even where the NHCR doesn’t (yet), in non-commercial use, and therefore, the EU could easily broaden the scope of the regulation.
“Scientists, editors, journalists and health professionals who still operate under the illusion that they control the language they use should wake up. Words that fall within the Union’s definition of health claim have been effectively confiscated and are prohibited unless authorised or derogated,” he said.