Food Law Update

Article by Jonathan Moakes & Nikki Ferguson

Regulation 1924/2006 on nutrition and health claims made on foods was adopted by the European Parliament in December last year and will apply from 1 July 2007 in all member states of the EU (including the UK). The Regulation applies to nutrition and health claims (including "reduction of disease risk claims") made in commercial communications whether in the labelling, branding, presentation or advertising of foods. It places stringent restrictions on what can and can’t be claimed on products and where claims are made the Regulation sets out strict criteria to meet. The Regulation applies to any food or drink product produced for human consumption to be sold in the EU and does not cover cosmetics, medicine or pet food products.

Nutritional claims are any claim which states, suggests or implies that a food has particular beneficial nutritional properties due to the energy it provides or the nutrients it contains. Some examples of nutritional claims are "high in vitamin C", "fat-free", "no added sugar" and "high fibre".

Health claims are any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and is in some way beneficial to health.

A "reduction of disease risk claim", is any health claim that states, suggests or implies that the consumption of a food category, a food or one of its constituents significantly reduces a risk factor in the development of a human disease.

Claims are used on labelling to present products as having an additional health or nutritional benefit.

In most cases, consumers perceive products carrying certain claims to be better for their health and wellbeing. At the moment, a food which is high in fat, salt and/or sugar, can still use claims such as "rich in vitamin C" or "high in fibre" to attract consumers even if the overall health and nutritional benefits of the product are low.

The Regulation aims to prevent consumers from being misled in this way.

Nutrient profiles have been widely criticized by the food industry and the European Parliament as demonising "bad foods" while ignoring their role in the scientifically proven concept of a balanced diet.

This system ties the use of health and nutritional claims to amounts of certain nutrients in food.

The Regulation will allow nutritional claims where only a single nutrient (fat, sugar, salt) of the food exceeds the nutrient profile of that food. So, if a low fat curry has a high level of sugar in, but levels of salt and fat that fall below the nutrient profile of that food, it will be able to make the claim "low fat". However this is subject to the provision that the statement "High Content of sugar" appears with "equal prominence and in close proximity to the nutritional claim".

The food industry has highlighted that the requirement for the additional negative claim means that positive nutritional claims are unlikely to be used in such circumstances. It is also arguably misleading in that a consumer may understand a product labelled for example, "rich source of vitamin C, high content of sugar" as containing more sugar than a competing product which does not have a claim but which in fact has a higher sugar content.

If two or more of the nutrients exceed the limit, no nutritional claim can be made.

The nutrient profiles will be based on the scientific opinion of the European Food Safety Authority (EFSA).

Nutrition claims shall only be permitted if they are listed in the annex to the Regulation and are in conformity with the conditions set out in the Regulation.

A claim that a food is low in fat, and any claim likely to have the same meaning for the consumer, may only be made where the product contains no more than 3g of fat per 100g for solids or 1.5g of fat per 100ml for liquids (1.8g of fat per 100ml for semi-skimmed milk).

A claim that a food is fat free and any claim likely to have the same meaning for the consumer may only be made where the product contains no more than 0.5g of fat per 100 grams or 100ml.

A claim that a food is high in fibre, and any claim likely to have the same meaning for the consumer, may only be made where the product contains at least 6g of fibre per 100g or at least 3g of fibre per 100kcal.

For certain other claims, disease risk reduction claims and claims referring to the health of children, authorisation will be required on a case by case basis, following the submission of a scientific dossier to the European Food Safety Authority for assessment. Likewise health claims based on new scientific data will have to be submitted to EFSA for evaluation before they can be authorised for use.

The Regulation will apply to any trade mark that can be construed as a health or nutritional claim.

The effect is that name claims are subject to the same restrictions as any other claim, including the requirement not to exceed the nutrient profile for the food in question.

Name claims will only be allowed without prior authorisation if accompanied by a related health or nutritional claim which is valid under the Regulation – e.g. "Low Fat".

It is therefore likely that the Regulation will apply to marks such as Vitalite and Tesco’s "Healthy Living".

There is a transitional period of 15 years during which products which bore the name claims before 1 January 2005 but which would constitute prohibited claims under the Regulation may continue to be marketed in the same manner. This only applies to products to which the name has already been applied, so new products cannot be sold under trade mark.

Until nutrient profiles are drawn up by the Commission (which could be up to 2 years from entry into force) it will remain uncertain which name claims will continue to be allowed.

No new trade marks or brand names which imply health or nutritional benefits will be allowed to be put on the EU market unless the claims implied can be substantiated, in line with the provisions of the Regulation.

• claims which suggest that health could be affected by not consuming the food;

• claims which make reference to the rate or amount of weight loss;

• claims which make reference to recommendations of individual doctors or health professionals or national medical associations and health related charities;

AND claims of "X% FAT FREE".

General principles for all claims

• be false, ambiguous or misleading;

• give rise to doubt about the safety or the nutritional adequacy of other foods;

• encourage or condone excess consumption of a food;

• state, suggest or imply that a balanced and varied diet cannot provide appropriate quantities of nutrients in general;

• refer to changes in bodily functions which could give rise to or exploit fear in the consumer, either textually of through pictorial, raphic or symbolic representations.

• the use of nutrition and health claims shall only be permitted if the average consumer can be expected to understand the beneficial effects as expressed in the claim;

• nutrition and health claims shall refer to the food ready for consumption in accordance with the manufacturer’s instructions;

• nutrition and health claims will be based on and substantiated by generally accepted scientific evidence;

• a company making a nutrition or health claim will have to be able to justify the use of the claim and the company may be requested by the authorities to produce all relevant elements and data establishing compliance.

A comparison may only be made between foods of the same category, taking into consideration the range of foods in that category.

The difference in the quantity of a nutrient and/or the energy value shall be stated and the comparison shall relate to the same quantity of food.

There are various transitional periods and timelines for products, claims and trade marks used prior to 1 January 2007 and nutrient claims made before 1 January 2006 and as such may continue to be used for different periods of time, depending on which catagory they fall into. Please contact us for further details.

and Finally ...

• a statement indicating the importance of a varied and balanced diet and a healthy lifestyle;

• the quantity of the food and pattern of consumption required to obtain the claimed beneficial effect;

• where appropriate a statement addressed to persons who should avoid using the food;

• an appropriate warning for products that are likely to present a health risk if consumed to excess.

The Regulation harmonises the position on the making of health and nutritional claims on foods across the EU and clearly sets out what is and is not permitted. The new rules in the regulation need to be followed in conjunction with the existing rules on advertising and labelling.

The Department of Health issued a White Paper in 2004 called "Choosing Health: Making Healthy Choices Easier" in which it promised to work with the food industry to develop better information on the nutrition content of packaged food.

• A clear straightforward coding system

• That is in common use

• That busy people can understand at a glance which foods can make a positive contribution to a healthy diet and which are recommended to be eaten only in moderation or sparingly.

On the back of this White Paper there has been a concerted effort by manufacturers and retailers alike to ensure that consumers can make healthy choices at the supermarket, quickly and easily. Whilst there is no legal obligation to include front of pack labelling on food, reputation pressures have resulted in wide industry adoption, though not of the same systems.

Despite the Government’s published goal there is not yet a single system in use – but rather 2 broad types of front of pack signposting schemes used by food manufacturers and retailers in the UK:

• Colour coded traffic lights such as the Food Standard Agency’s ("FSA") scheme; and

• Guideline Daily Amounts ("GDAs") (non colour coded but providing accurate nutritional information).

The FSA traffic lights scheme has been adopted by retailers such as Asda, Sainsbury’s, Waitrose, the Co-op and Marks & Spencer’s and is the preferred system of organisations such as the British Heart Foundation, Diabetes UK, the Royal College of Physicians, the National Consumer Council and the Office of the Children’s Commissioner.

The system is easily understood and is seen as child friendly - allowing parents to easily teach their children about healthier options based on the simple traffic light system, with red indicating those foods which are high in fat, sugar and/or salt and which are therefore to be eaten sparingly, through to green which indicates those foods that are low in fat, sugar and/or salt and which are therefore healthier.

The FSA has reported that the evidence so far is that consumers are not running away from red markers but are using the information to balance their weekly shop and are not interpreting red as "don’t buy".

The GDA system is more commonly used by Tesco and manufacturers, such as Cadbury’s and Kellogg’s. This provides information on how much of your daily intake of calories, sugar, fat etc. is contained in each product.

This is particularly popular with manufacturers who may have the colour red in a traffic light system based on the 100g of product, but where consumers never eat 100g of that product in one sitting. GDA, they believe, gives a more accurate picture of % consumption in the portion actually eaten.

The industry has fallen short of the Government’s stated aim in its 2004 White Paper of having one simple system of coding. It remains to be seen what will happen over the next couple of years and whether one system will be imposed, though the opposition to this from manufacturers means this two type coding system may remain.

Ofcom has recently completed its review of the rules relating to television advertising of food and drink products to children. This issue has not been without controversy. The link between television advertising and obesity in children remains high up on the political agenda and many in the food industry have been waiting to see how Ofcom was going to balance the protection of children from advertising of junk food against the need to maintain the competitiveness of the food industry. You have probably heard it referred to in the press as a ban on advertising junk food to children. So what does this mean?

Ofcom has opted for a system of restricting advertising to children based on the nutrient profiling system created by the FSA.

There has been strong criticism of the nutrient profiling system as it works by categorising food into 3 categories:

• High in saturated fat, salt or sugar ("HFSS")

• Intermediate product

• Healthier choice

Products which fall into the HFSS category will be subject to Ofcom’s restrictions. This is what the press are referring to when they say JUNK FOOD.

The FSA nutrient profiling model categorises products based on nutrients per 100g. This has led to some rather surprising results for different food groups and unsurprisingly to criticism from the food industry and The Grocer magazine.

As the model dictates that every food is scored according to a basic 100g portion, this means that foods which are normally eaten only in small amounts – such as cheese, raisins or marmite are treated in the same way as a super size burger from a fast food outlet.

Ofcom has said that the ban which will be phased in will cover any shows which children (defined as under 16) would find appealing, whenever they are aired.

Manufacturers and retailers of food will need to carefully consider which products to include in their adverts if they are to be aired during programmes which may be viewed by children.

1 April 2007 – ads for HFSS foods have been banned during or around programmes made specifically for children or those which would particularly appeal to children aged 7-9.

1 January 2008 – ads for HFSS foods will be banned in and around programs aimed at, or which appeal to children aged 4 - 15.

By December 2008 dedicated children’s channels will have to have phased out all junk food ads.

The new content rules come into effect immediately for new advertising campaigns.

Existing advertising campaigns or those in the final stages of creative execution can be broadcast until the end of June 2007. However from 1 July 2007 all advertising campaigns must comply with the new content rules.

The rules will be reviewed after one year.

The new rules also apply to sponsorship of TV programmes and therefore are likely to have implications for food companies wanting to sponsor Saturday morning children’s programmes or even programmes like Pop Idol.

The use of celebrities and characters, such as cartoon heroes and free gifts will also be restricted.

Ofcom are able to impose fines of up to £250,000 and to take any non compliant ads quickly off air. Further, as there is likely to be reputational damage to broadcasters who air "rogue" ads, the advertising contracts with food manufacturers and retailers are likely to become more stringent – with specific indemnities appearing in favour of broadcasters.

Regulation 1925/2006 on the addition of vitamins and minerals and of certain other substances to food was published on 20 December 2006 and applies from 1 July this year. The Regulation stipulates the restrictions on and the conditions for the addition of vitamins and minerals to foods and deals with the labelling, presentation and advertising requirements of those foods to which vitamins and minerals have been added.

• Restoration - to replace some of the nutritional value which is lost when food is being manufactured or stored.

• Substitution - to substitute foods which resemble ordinary food e.g. margarine – vitamins A and D are added to margarine during production so that it will have a similar vitamin level to butter.

• Fortification - calcium is often added to fruit drinks to provide an important source for people who don’t eat dairy products.

BUT (as specified within the Regulation) vitamins and minerals may not be added to unprocessed foodstuffs or beverages containing more than 1.2% by volume of alcohol (except in certain limited circumstances). Additional categories of food may also be excluded depending on their nutritional value e.g. a sweet or candy bar enriched with vitamins would not be allowed.

The aim of the Regulation is to ensure that foodstuffs on sale are safe and properly and clearly labelled so that consumers can make informed choices.

The text of the Regulation lists the vitamins and minerals that may be added to food as well as the forms and conditions in which they may be added, including minimum and maximum levels, and the amount required depends on the claim you are making such as ‘enriched with’ or ‘high in’.

The labelling, presentation and advertising of foods to which vitamins and minerals have been added shall not:

• include any mention (stating or implying) that a balanced and varied diet cannot provide appropriate quantities of nutrients;

• mislead or deceive the consumer as to the nutritional merit of a food that may result from the addition of these nutrients.

AND nutrition labelling of products to which vitamins and minerals have been added and which are covered by the Regulation shall be compulsory. This means that where vitamins and minerals have been added the label must include a breakdown of the following:

• energy value;

• the amounts of protein, carbohydrate, sugars, fat, saturates, fibre and sodium; and

• the total amount of the vitamins and minerals present.

Further, products to which vitamins and minerals have been added may bear a statement indicating such addition - so in effect the addition of vitamins and minerals can be advertised on the labelling.

Sales of FAIRTRADE products in the UK topped £195 million in 2005 and £270 million in 2006 and there appears to be an ever growing consumer demand for products that benefit disadvantaged producers in the developing world.

Consumers recognise the FAIRTRADE mark as a guarantee that the importers, distributors and wholesalers/retailers of FAIRTRADE marked products are giving their third world producers a "better deal" (in terms of income, working conditions and terms of trade) and, in turn, FAIRTRADE products are increasingly giving retailers a competitive edge.

There is therefore a real temptation for traders to mark products as FAIRTRADE to cash in on this growing market but unless traders are legitimately licensed by the Fairtrade Federation (in the UK) to apply the FAIRTRADE mark to their goods, such application is not only unethical and dishonest but also illegal.

FAIRTRADE is a registered device and word mark (Community Trade Mark E2606994) and in order to use this mark on products legitimately, the products must meet international FAIRTRADE standards, must be purchased from registered third world producers and the suppliers of FAIRTRADE products (either the brand-owner or main national distributor) must enter into a licence agreement to use the mark. To ensure that only true FAIRTRADE products are sold as such, FLO inspects and certifies producers of FAIRTRADE products and the Fairtrade Foundation inspects and audits the trading records and process systems of UK licensees to ensure compliance with the terms of their licence agreement. In addition, the Fairtrade Foundation keeps a close eye on the market and takes action against unauthorised use.

In the event that a trader applies the FAIRTRADE mark to products without licence or sells, offers for sale, imports, exports or advertises or promotes products under the FAIRTRADE mark without licence then the trader engaging in such activity is infringing the registered trade mark of FLO. In such circumstances FLO can bring an action for trade mark infringement, which would almost certainly result in removal of the infringing product from the market together with payment of damages to FLO.

In addition, the application of the mark without authorisation is a criminal offence which carries a potential ten year prison sentence and unlimited fines. In the case of corporations, it is the Director/Executive/Senior Employee with overall responsibility for the unauthorised marking of the products who will face imprisonment.

Unauthorised use of the FAIRTRADE mark is not only a criminal offence under the Trade Marks Act 1994, it is also a criminal offence under the Trade Descriptions Act 1968 as a false description is applied to the products in question. The sanctions under the Trade Descriptions Act are unlimited fines (if prosecuted in the Crown Court) and a potential two year prison sentence. There is a possible defence open to traders if it can be proved that the application of the false trade description was due to a mistake or to reliance on information supplied by, or the act or default of, another person or due to an accident or some other cause beyond his control provided that all reasonable precautions were taken and that all due diligence was exercised to avoid the offence. It is, however, difficult to envisage how this defence could be relied upon where the FAIRTRADE mark is applied, especially with the growing awareness of what the mark means.

Trading Standards are responsible for bringing criminal prosecutions both under the Trade Marks Act and Trade Descriptions Act for the unauthorised use of the FAIRTRADE mark. As the unlawful use is likely to result in consumers purchasing the offending products merely on the representation that the products are indeed FAIRTRADE, Trading Standards will almost certainly take a hard stance against such traders.

Traders must not describe their products as "fair trade" or apply the FAIRTRADE mark or the "fair trade logo" to their products unless they are legitimately authorised to do so. Unlawful application results in offending traders profiting from the offence without benefiting the third world producers. The Fairtrade Foundation take a robust stance against rogue traders to prevent them from cashing in on the FAIRTRADE "boom" and with a growing awareness within Trading Standards we are likely to see an increase in prosecutions in the coming years for unauthorised use.

Put simply, those who flout the law and choose not to "trade fair" are deceiving the public at the expense of the marginalised producers of the developing world and they risk paying dear, both financially and in terms of their personal freedom.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.