The food and drink industry takes up arms next week against what it believes is ill thought out legislation that will stifle innovation, impose unfair censorship and restrict consumer choice.
The battleground is the European Commission proposals on nutrition and health claims, and first into combat will be the Food and Drink Federation with a preliminary submission.
There are two main platforms to the EC’s proposals: nutrition and health.
Misleading nutritional claims would be outlawed while claims for a product’s health benefits could only be made if they could be proved and if they fell within an inventory of claims permitted by government. Any that were outside would have to go through a lengthy approval process.
Labelling, advertising and, in the final analysis, claims made by implication rather than by statement of fact would be subject to this new scrutiny. And it is the latter area where the crackdown presents manufacturers with their biggest challenge.
The FDF says that the regulations would damage UK businesses and restrict consumer choice. It argues that it would “unfairly censor information to consumers about the benefits of products” and restrict innovation because companies “will not invest in expensive research and development if they cannot communicate those benefits”. Martin Paterson, FDF deputy
director general, called the draft version of the legislation “shambolic” when it was published on July 16. John Cooper, head of regulatory law at Wragge and Co, adds: “Many people will find the legislation challenging. The rules cover all claims made for a product’s nutritional content and health benefits, including those that are implied rather than stated.
“Some advertising agencies must already be looking closely at the proposals.”
Under existing food regulations, manufacturers are prohibited from making any claim that a product can prevent illness or disease, whether or not the claim is legitimate.
Hence such straplines as “may benefit…” or “may help to prevent…”.
The European Commission intends to lift these restrictions for claims that are legitimate and permissible under its inventory, which should be finalised within three years of the proposals becoming law.
Cooper says the commission’s intention is laudable.
“It is trying to stop people emphasising a single positive quality contained in a product that is essentially bad for health.”
But he says: “Anyone making a health claim which is not on the list will need to seek authorisation and it will not be a quick process.”
This is an understatement. The draft states that the first application must be made to the European Food Safety Authority which will then make a recommendation to the European Commission.
The commission’s decision will then go out to public consultation before it delivers its final verdict.
The whole process would take at least nine months, which would be bad news for a manufacturer attempting to launch a new product, says Cooper.
“If you’ve come up with an innovative product, you won’t necessarily want the competition to know so far in advance what it is. There must be an argument that this stifles innovation.”
The FDF also points to the mountain of red tape that would be generated. “A disproportionate burden will be placed on companies that wish to make a claim by requiring them to translate the proposal into all Member State languages, even if they only propose market the product in one or two countries,” a spokeswoman says.
However, the added red tape would be a minor obstacle compared to other hurdles that would have to be cleared, particularly those stemming from the legislation as applies to implied claims. “That could challenge intrinsic brand values,” says Cooper, citing products aimed at the weight-loss market. “It is difficult when people make claims about dietary benefits. Many of these products may be low calorie, but they are not necessarily low sugar or low salt.”
A whole spectrum of brands could be forced to overhaul their labelling,or advertising campaigns or even their brand strategies. It is a sobering thought for any manufacturer that has successfully used health claims to build a brand, especially as they could face a court injunction if they make a prohibited claim.
Fortunately, not all the legislation makes for such a presentational minefield.
The changes to nutritional information, which will put a stop to claims such as “90% fat free”, are long overdue and should be easy to implement, says Eversheds partner Owen Warnock.
He adds: “In principle, the legislation seems fair and reasonable.”
But manufacturers should not underestimate the difficulties that could come from the proposals governing health claims. As Cooper says: “A large number of products are going to fall foul of this legislation - and not only those products that are intrinsically bad.”