1 Nutrition and health
claims made on foods
| (24763)
11646/03
COM(03) 424
| Draft Regulation on nutrition and health claims made on foods
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| Legal base | Article 95 EC; co-decision; QMV
|
| Department | Food Standards Agency
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| Basis of consideration | SEM of 11 March 2004
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| Previous Committee Report | HC 63-xxxiii (2002-03), para 18 (15 October 2003)
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| To be discussed in Council | June 2004
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| Committee's assessment | Politically important
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| Committee's decision | For debate in European Standing Committee C; further information requested
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Background
1.1 According to the Commission, as food production has become
more complex, consumers are increasingly interested in the information
appearing on food labels, and in their diet. It therefore takes
the view that this information should be clear, accurate and meaningful.
Current Community legislation[1]
lays down a number of detailed rules on food labelling, including
a prohibition on the attribution of properties which prevent,
treat and cure ailments, but these provisions are open to different
interpretations, leading to numerous discrepancies.
1.2 Against this background, and a recent case in
which the European Court of Justice interpreted the existing legislation
as banning all health claims relating to human diseases,[2]
the Commission put forward in July 2003 this draft Regulation,
which would maintain the existing general approach, but allow
nutrition and health claims under strict conditions. Only those
claims which conform with the Regulation would be allowed for
foods placed on the Community market, and the proposal would apply,
not just to "traditional" nutrients, but to other substances
with a nutritional effect, and to all foods. Particular attention
would be paid to claims which, although factually true, can be
misleading.[3]
1.3 More specifically, the proposal would establish:
- a positive list of permitted
nutrition terms, such as "low", "rich"
and "light", and the conditions under which they may
be used; and
- procedures for the pre-market authorisation of
health claims, under which the European Food Safety Agency
(EFSA) would be consulted on the supporting scientific evidence
before an authorisation was given.
It would also require the Commission to establish
nutrient profiles for foods which may carry nutrition or health
claims, and lay down the basis on which the claims of different
products may be compared. In addition, certain categories of
health claims, such as those which refer to general non-specific
benefits, or to psychological and behavioural functions, would
be prohibited; and it would also be prohibited for foods not specifically
designed for weight control to make claims relating to potential
weight loss.
1.4 In our Report of 15 October 2003, we noted that
the Government was broadly supportive of the proposal, pointing
out that there had been an increase in claims of this sort on
the UK market, but that their validity or otherwise was not apparent
to consumers, and had presented difficulties for enforcement authorities.
Although a voluntary approach had been encouraged in the UK with
some success, it was clear that the coverage had been patchy,
and that statutory action at Community level was needed. However,
it would be important to establish appropriate transitional arrangements,
bearing in mind the time required to compile and submit applications.
1.5 We also noted that a Regulatory Impact Assessment
was being prepared, and that the proposal would have significant
resource implications for the EFSA, particularly in the short
term. We therefore said that we thought it sensible to await
this Assessment before taking a firm view, and that, in the meantime,
we would continue to hold the document under scrutiny.
Supplementary Explanatory Memorandum
1.6 In her supplementary Explanatory Memorandum of
11 March 2004, the Parliamentary Under-Secretary of State for
Public Health at the Department of Health (Miss Melanie Johnson)
says that the Government's position remains essentially as we
reported in last October, and that the negotiations "appear
to be on track". She does, however, say that the Government
will be:
- pressing the Commission to
adopt a proportionate approach when it establishes, within the
framework to be set by the Council, the detailed criteria for
nutrient profiling;
- seeking to allay any industry concern that the
prohibition on certain types of health claim could stifle innovation;
- pressing for longer transitional periods so as
to minimise any costs incurred by businesses in complying with
the proposal, and in particular so that any re-labelling can be
achieved within the 24 month or so timescale used by industry
for routine changes to product lines; and
- aiming to ensure that "healthy option"
products offered by most major retailers, which make a clear nutrition
claim and meet the relevant criteria, will not be adversely affected
by any of the other provisions of the proposal.
1.7 The Minister has also provided the promised Regulatory
Impact Assessment, though she says that the financial implications
of the proposal will be explored further as the negotiations progress,
and the Assessment updated accordingly. In the meantime, the
Assessment suggests that the products most likely to be affected
by the proposal are those bearing health claims, particularly
in the food supplements sector, which, although not banned by
the proposal, could nevertheless become commercially unviable
if the claims in question are not allowed.[4]
However, it is not possible at this stage to quantify the likely
consequences either in this area, or as regards the effects of
nutrient profiling, though the Assessment suggests that the range
of products carrying claims is likely to decrease, that, although
substitute marketing may be possible, this could lead to a reduction
in the number of producers or importers, and that the costs of
developing new products may increase.
1.8 On the other hand, it also suggests that the
quality of the remaining products (as measured by their ability
to deliver the claimed health and nutritional benefits) is likely
to improve substantially, and that this will bring considerable
benefits to the consumer. In addition to these, and to the public
health benefits arising from better information, free movement
of goods within the internal market would be facilitated and there
would be increased legal security for economic operators.
Conclusion
1.9 Although the Minister has said that the negotiations
on this proposal appear to be on track, we note that there are
a number of outstanding concerns, and that some of the uncertainties
—
for example, on nutrient profiling —
will not be resolved until after it has been adopted. We also
note that, notwithstanding any health benefits, there are concerns
that the proposal will decrease the range of nutritional products
available and discourage innovation.
1.10 We believe that these issues require further
consideration, and we are therefore recommending that the proposal
be debated in European Standing Committee C. We hope that it will
be possible before then for the Government to provide an updated
Regulatory Impact Assessment, and in any event we ask for the
Government's assessment of the likely effect of the proposal on
employment.
1 Directive 2000/13/EC.OJ No. L 109, 6.5.00, p.29. Back
2
C-221/00, Austria v. Commission. Back
3
Such as "90% fat-free", which masks a fat content of
10%. Back
4
The UK has also questioned whether specific prohibitions are necessary,
bearing in mind that health claims would need to be approved by
the EFSA. Back
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