The regulation is envisaged to harmonise health claims that can be made on food products throughout the EU. But its passage into law has not been an easy one since the European Parliament and Council were in disagreement over several important aspects, including nutrient profiling, until a compromise deal was struck in May.
The regulation was set to be adopted at yesterday's meeting of council ministers. But the 11th hour discovery that it contained the wrong regulatory comitology procedure meant it had to be withdrawn.
Miguel Fernandez da Silva, an advisor for European Advisory Services, told NutraIngredients.com that, at best, it could be months before the matter is rectified and adoption can go ahead; at worst, it could give dissenters the opportunity to reject the compromise.
The comitology procedure relates to enacting periods or amendments to agreed legislation that sketched out in the main body of the text, to be drawn up in full at a later date. In the case of health claims, the main area subject to comitology is nutrient profiling - that is, whether foods containing high levels of substances detrimental to health like saturated fat, sugar or salt may bear health claims relating to beneficial nutrients.
It has been envisaged that nutrient profiles be drawn up by an expert working group within a couple of years of the regulation's adoption.
Under the old procedure they would then have been approved by a committee made up of the Member States. But in July, this was superceded by the Regulatory Procedure with Scrutiny, under which Parliament has the opportunity to intervene.
Da Silva said that it is not a simple matter of replacing the text of the old procedure with the new.
"No-one knows how to insert the text," he said. "Technically, as it was an agreement between the Council and the Parliament, they would need to go through conciliation."
But conciliation would mean that the whole regulation would be put on the negotiation table once more, which may open up old gripes once more.
If the Council and Parliament could have an informal agreement only to insert the new comitology procedure, then the problem could result only in a delay of a month or two.
Nutrient profiling was previously one of the main flash points of disagreement. Under the compromise package, it was agreed that foods that do not respect the nutrient profiling would still be able to make health claims as long as only one nutrient exceeds the limit and this is indicated on the label.
But the new comitology procedure will give Parliament the chance to reject this compromise with a simple majority vote - a scenario that is possible since the EPP-ED group, which has a simple majority of Parliament, was opposed to the compromise.
David Hare, consultant at health and diet lobbyist The Whitehouse Consultancy told NutraIngredients.com that whether it would be politically prudent to take health claims back to the drawing board at this late stage is another matter.
"This was largely brought on by a technical snag, not a desire to see the discussions reopened," he said
Hare believes that the regulation could be re-tabled for adoption as soon as next month.