It’s hard to get away with even the most benign of health claims these days. While the old aphorism about an apple a day might still hold true, the Mars bar’s claim to ‘help you work, rest and play’ was retired in 2002 amid rising tension over health claims. And in 2007, even ‘Go to Work on an Egg’ was deemed too dangerously unbalanced.

Of course, the disappearance of these slogans hasn’t stopped people eating Mars bars or eggs - after all their ‘claims’ weren’t the primary reason people bought the products in the first place. However, the burgeoning demand for foods whose raison d’être is the improvement of health or the prevention of disease has created a lucrative market in ‘functional foods’ - largely unregulated until recently.

Health claims about food and drink had reached such complexity by 2009 that it was decided tighter regulation was needed to stop consumers being duped into buying products based on bogus promises. The European Commission is due to publish a final list of approved health claims in the first quarter of 2012 in which it is expected to rebuff even established claims such as the notions that probiotic yogurts can regulate gut health, and taurine can boost athletic performance. Suppliers will then have six months to remove unapproved products. Nutrition claims such as ‘extra light’ and ‘no added salt’ also face the axe, while outside the scope of the EU regulation, the ASA and even the BACC now routinely ban misleading inferences.

The publishing of the EC’s list will mark the completion of a dramatic, and rapid, transition from a situation in the European food industry where pretty much any health claim goes, to a point where even scientifically robust claims are outlawed because they don’t meet rigorous criteria designed for pharmaceutical products.

The EC’s zealous approach to health claims approvals has unsurprisingly drawn fierce criticism from the food industry. In 1862, however, outrage took a very different form. Back then, there was no regulatory control of such claims, so manufacturers were free to make not only grossly exaggerated but sometimes dangerously inaccurate claims. At the time food adulteration was rife, scientific analysis in its infancy and the cause of many diseases poorly understood. Unscrupulous quack ‘doctors’ took advantage of the situation and played on the public’s fears.

The worst offenders were purveyors of ‘secret’ remedies promising to cure every known disease. One remedy claimed to cure cancer with “electric fluid” later shown to be water. Similarly, Dill’s Diabetic Mixture was promoted in 1870 as “the only known remedy for this deadly disease” - and also claimed to be effective against jaundice, liver complaints and kidney diseases. Its main constituents were sodium bicarbonate, resin, alcohol and water.

Although Adulteration of Foods Acts were passed in 1860 and 1872, it wasn’t until the Sale of Food and Drugs Act of 1875 that food quality really began to improve. This act - which saw the end of additives such as alum, red lead, sulphide of arsenic, brick dust, tallow, sulphuric acid and ground shells - still forms the basis of the present law. It did not, however, put an end to dubious health claims. Some of the most popular claims related to digestion. In 1896, Hovis proclaimed itself as a product that “promotes digestion”.

As late as 1936, it was even suggested Camel cigarettes should be smoked “for your digestion’s sake”. Leibig’s Extract of Beef claimed in 1896 to make dishes “more nourishing and digestible” and by 1905, it had become a “life-sustaining beverage, relished and retained by the most delicate constitutions”.

The discovery of vitamins at the beginning of the 20th century accentuated interest in health foods - and health claims. Products were quick to stress how many vital ingredients they contained. In 1903, Cadbury’s Milk Chocolate boasted that it contained “all classes of food, fat, carbohydrate and protein”.

‘The perfect food reserve’
The Second World War led to more emphasis on nourishing qualities in difficult times. Bournvita promised to improve your sleep ‘in your strange new Home Front life’ while Oxo said it was ‘The Perfect Food Reserve’ and ‘stimulates and fortifies you in these trying times’.

As consumer understanding of nutrition improved, the focus of health claims shifted away from vague and often outlandish claims to more plausible claims based on everyday wellbeing. Flora margarine was promoted as “good for your heart”, while in the 1980s, low-fat and low-sugar products proliferated as claims became more selective.

As scientific understanding of products has improved, a number of claims have been banned. One area definitively consigned to history is tobacco advertising, one of the richest sources of outrageous health claims over the years. As soon as it was introduced into England in the 16th century, tobacco was recommended as a cure for ailments such as headaches, catarrh and inveterate coughs. One 1894 ad for Joy’s read: “Joy’s Cigarettes afford immediate relief in case of asthma, wheezing, winter cough, and hay fever, and, with a little perseverance, effect a permanent cure.”

The discovery of the link between smoking and lung cancer put paid to cigarette advertising in 1965, although cigar and pipe tobacco ads continued until 1991. Food suppliers, however, have on the whole been free to promote the health-giving properties of their products without interference from regulators. The past decade, in particular, has seen a rapid acceleration in claims made for everything from energy drinks and yoghurts to fish fingers and cereals, with new buzzwords such as taurine, omega-3 and antioxidants becoming firmly established. Entire brands have been built on claims that they improve the health of the consumer and with little regulation preventing such claims being made, the functional foods industry has grown into a sector with an estimated value of £719m in the UK alone [Mintel].

The efsa gets tough
The wheels, however, could be about to fall off. In 2009, the EC set out to ensure that seemingly justifiable health claims could be scientifically substantiated by food manufacturers. It asked the EFSA to assess every claim made on a product and deliver a verdict on its veracity. Around 80% of claims have been rejected or withdrawn by applicants, prompting high-profile brands to move away from making explicit claims about a product’s health benefits, preferring instead to use visual devices and suggestive language to imply wellbeing.

Activia is a classic case in point. With the EFSA unsatisfied that a link between probiotics and improved gut health had been proven, Danone withdrew its application for Activia and has gradually moved the brand away from its positioning as a functional product. Gone is the on-pack claim ‘helps reduce digestive transit’ replaced by a more generic fat-free claim, while the depiction of fruit on-pack has assumed greater prominence. Advertising, meanwhile, has switched from science-based rhetoric to a softer message of ‘get the most out of your day’. The move seems not to have damaged the brand. Sales topped £240m in the past year [Nielsen] and Activia was the only one of the top five UK yoghurt brands to deliver value growth.

The EC’s final list of approved claims is expected to be published later this month. Those products that have failed to have claims validated are then left with a series of options: resubmit the claim, give it up and withdraw it or the product, find another way of getting the message across to consumers or go outside the jurisdiction. The early signs are that option three is proving most attractive to suppliers.

Consumers may possibly turn their backs on low GI or probiotic foods purely on account of limitations in EFSA’s approvals process. But what the new regulatory environment does mean is that, moving forward, suppliers bringing new functional products to market will have to invest time and money in proving the veracity of their claims, which in theory should reduce the number of bogus ‘health foods’.

But with the tabloid press routinely running overblown stories based on tenuous evidence of how everyday foods such as bacon and broccoli can cure or cause cancer (and in some cases running contradictory stories within a matter of months of each other), the scope for consumer confusion remains huge. Where diet is concerned, perhaps an apple a day really is still the best way to keep the doctor away. Whether anyone would dare to make such a claim is another matter.