Enforcement day is here. More than four years after the European Food Safety Authority started working its way through 4,637 proposed health claims, it became illegal on 14 December to use any general health claim not on an approved list of 222.

The clampdown on unsubstantiated claims has claimed some high-profile casualties, including all probiotic claims as well as the term ‘antioxidants’ - as well as outlawing more obscure claims such as the notion that almonds benefit erectile function.

Some of the biggest names in the health foods industry adapted to the new legislation well ahead of this week’s deadline, often finding creative ways to comply.

However, many small companies appear to be carrying on oblivious to the legislation, raising concerns about how strictly it will be enforced. There are also some lingering grey areas and one or two curious loopholes to be aware of.

Danone, which warned earlier this year that “the probiotics category could disappear” because of the tough line taken by EU lawmakers, stopped making explicit digestive health claims on its Activia and Actimel yoghurts two years ago.

It also removed the descriptor ‘contains probiotics’, which guidance from EU lawmakers states constitutes an implied health claim.

Not everyone has followed suit. There were 210 products launched in the EU this year mentioning probiotics on-pack, according to Mintel’s Global New Products Database, suggesting many companies are either unaware of the guidance or have decided to take a risk.

“Products typically feature the words ‘contains probiotics’ on pack. It will be interesting to see whether authorities regard such statements as health claims,” says Leatherhead analyst Matthew Incles.

“What is the value of the whole process, all the money spent and the man hours, if no one is going to police it? “

Steve Morrison, former COO, Provexis

Many companies have used images to adapt to the new legislation. “Images are a classic way of implying a health benefit without making an explicit claim,” says Owen Warnock, partner at law firm Eversheds.

For example, packs of Activia yoghurts display lines suggestive of a waist and an arrow pointing downwards. It remains to be seen exactly how far brands will be able to push the use of graphics and images. Regulators will have to judge on a case-by-case basis whether an image implies a specific health claim or not.

Some creative marketing may save a lot of brands from falling foul of the rules or seeing their sales drop back. “Red Bull, used its ‘Red Bull gives you wings’ strapline to great effect long before the industry got its knickers in a twist over functional products,” says Incles. In fact, Red Bull’s claim - that caffeine increases alertness and attention - is one of the 222 approved claims.

Making full use of the palette of approved claims is another way of adapting to the health claim regulations. In Sweden, Arla Foods launched a range of dairy products called Wellness in September containing probiotics that make digestive health claims based not on probiotics but calcium content. “Arla is showing that there need be no barrier to launching a health brand or to continue to market digestive health and immune health benefits for products that also happen to contain probiotics,” says Julian Mellentin, director of New Nutrition Business.

Brands may also be able to use the media to make claims that would be banned on packs or in advertising. The Department of Health’s guidance is that “as a general rule, a newspaper article will not be covered by the regulation,” so brands that run effective PR campaigns could still get their health messages across.

The Department of Health has also stated that business-to-business communications fall outside the scope of the rules, which could lead to a bigger role in the marketing mix for trade PR and advertising.

There is likely to be some variation in how different member states enforce the rules. Letters from the Department of Health reporting back on the meetings of the Commission’s working group on nutrition and health claims already reveal significant differences of views between member states, although individual countries are not named.

In the UK, responsibility for enforcing the regulations will be shared by the Advertising Standards Authority and Trading Standards. The ASA will enforce the rules in relation to all advertising materials and Trading Standards will be responsible for policing all on-pack claims.

“We’re likely to see several ASA complaints early on and it will be very interesting to see what line they take,” says Warnock.

The ASA said it was not expecting any major changes. “We don’t foresee there will be a significant change in practice, as the advertising codes have reflected these legislative changes for some time,” it told The Grocer.

Some are concerned the ASA and Trading Standards may not prove to be the toughest policemen. Steve Morrison, former COO of ingredients company Provexis, which won the EU’s first-ever article 13.5 health claim, is disappointed by the lack of proactive plans to enforce the regulations.

He said a representative of Surrey Trading Standards told him “If we thought there was a terrible issue out there we might react differently but we don’t think this is the case.”

Morrison disagrees. “There are an awful lot of smaller companies that are not embracing the regulations. What is the value of the whole process, all the money spent and the man hours, if no one is going to police it?”

Topics