All broadcasts will now be governed by the regulation with groups like the Advertising Standards Authority (ASA) acting as watchdog. Already stricter interpretation of the link between marketing and science has been apparent in some ASA rulings including one against Danone for children's immunity health claims it was making in TV adverts for its probiotic drinking yoghurt, Actimel..
“Advertisements will now be viewed and assessed in relation to decisions and opinions related to the NHCR,” said Dr Mark J Tallon, principal of the UK-based consultancy,NutriSciences.
“The ASA can impose sanctions, which in the worst offenders, can lead to injunctions from the Court to prevent companies from making misleading claims in their ads.”
Tallon suggested the ASA could take guidance from the regulation itself as well as opinions that have been coming through from the European Food safety Authority (EFSA).
“Is it possible the ASA could use these decisions to block your marketing claims? They may try,” Tallon suggested.
But he acknowledged there remained leeway in the way the regulation will be both interpreted and enforced, and noted a precedent for flexible transition periods in the form of the infant formula directive, for which a two-year transition period was granted after much industry lobbying.
“In relation to the NHCR this suggests than the regulation, which should have had the community list in place by January 2010 should be enforceable by that point. However, many issues suggest the market will be able to play for time and avoid the ASA utilising this regulation to remove claims form the market.”
The community list is not expected to be finalized now until 2012.
Companies needed to look closely at, “the key factors in the regulation in relation to implementation and transition periods to keep current claims on the market.”
Tallon noted the ambiguous position the regulation forced companies into if their products and ingredients had not yet been adjudicated under the regulation.
“At present we have many ingredients and products which have no decision completed as defined by the full authorisation procedure, which means most products will have until at least July /August 2011 to continue with their claims, whilst building a marketing strategy to deal with the regulation post-transition,” Tallon said.
He said discussions would continue with local enforcement agencies such as LACORS (Local Authorities Coordinators of Regulatory Services) in the UK, as well as other bodies, about matters such as, “real time sell through timelines”.
The censored Danone advert featured a bottle of Actimel skipping rope and was targeted at children between the ages of 5-16.
In assessing the evidence submitted by Danone, the ASA highlighted inappropriate populations (too young or unhealthy); studies that did not determine immune system effects; samples that were too small; incongruous doses between studies and actual recommendations and a lack of statistical difference in results between study and control groups.
All these points have been highlighted by EFSA as reasons to reject health claim dossiers.