Steve Morrision was the COO at Provexis when the UK start-up won the EU‘s first ever article 13.5 health claim for its blood circulation-boosting tomato extract called Fruitflow in 2009. The now-consultant has serious qualms about how the EU’s health claim laws will be policed – and the effect policing may have on all claims.
After handling the dossier submission on the very first functional food ingredient to receive an Article 13.5 health claim, I began wondering when the true value of possessing an EC endorsed health claim would become evident.
I understood, even in 2009, that the full impact of the European Union nutrition and health claim regulations (NHCR) would not be properly felt until EFSA had completed the review of all outstanding Article 13.1 claims and, even more importantly, until a process of enforcement could begin on a list of approved health claims.
Then we might truly see a level playing field for European functional food producers and be able to build consumer confidence in the health benefits being represented on product labels and in advertising.
Well 'enforcement day' is almost upon us after May 2012 saw the European Commission finally publish a list of 222 permitted health claims which can be made on foods other than those referring to the reduction of disease risk and to children’s development & health (EC Regulation 432/2012).
So what about the actual process of enforcement? A list of permitted claims isn’t worth the paper it’s written on unless it is actively policed and our industry held accountable to it. All the thousands of hours devoted to the NHCR regulations within EFSA, the European Commission and National Competent Authorities, not to mention those individual companies striving for a claim, will count for nothing if we get this part of the process wrong.
There are understandable fears that policing will be unevenly applied across EU member states and even concerns about variations within individual countries.
To check out the UK perspective I recently contacted the UK Advertising Standards Authority (ASA) and a sample of eight Trading Standards Services within Local Authorities. Between them they have responsibilities for advertising media (ASA) and product labelling (Trading Standards). I wanted to see how well prepared they were for the impending deadline and to see what plans they had in place.
Whilst the ASA acknowledged that it was, “within the ASA’s remit to act on complaints in this area, and proactively monitor the media, to take action against any advertisement which breaks the rules” they noted that monitoring was “behind the scenes” and that the ASA had, “no plans to do a sector specific sweep” even after December 14.
It seems that their concept of a proactive stance might be interpreted differently by others and that ASA are preparing to adopt a wait and see approach with some reliance on external complaints to highlight transgressions.
To date, three of the eight Trading Standards teams I approached have responded to my request for information. Again they appear to have no plans to do anything different as a result of the deadline. A representative from Surrey Trading Standards stated: “If we thought there was a terrible issue out there we might react differently but we don’t think this is the case. Most companies are aware of the legislation.”
Another Trading Standards team wrote stating that the County Council were considering my request and would respond by the 19th December 2012 to tell me what their plans were. The irony of that date falling after December 14 seemed to have slipped their notice. So keep watching and keep one eye on your competitors.
The jury is still out...
Steve Morrison was Chief Operating Officer of Provexis before becoming director at P2F Ventures Limited, a UK consultancy company offering strategic and operational development advice to a number of European companies wishing to obtain health claims under the NHCR.