Playing for time & the EU health claims directive

On October the 30^th 2009 the Broadcast Committee of Advertising Practice (BCAP) revised its TV and radio advertising codes so to not conflict with the Nutrition and Health Claims Regulation (NHCR) 1924/2006. This means that advertisements will now be viewed and assessed in relation to decisions and opinions related to the NHCR. The adoption of the regulation was brought into immediate effect. This follows the earlier integration of the NHCR within the CAP code (Covered in our Blog in Jan 2009), a code governing the advertising (broadcast and non-broadcast) of consumer goods in the UK. Although the code is in principle the Advertising Standards Agency (ASA – The body which enforces the code) can impose sanctions, which in the worst offenders can lead to injunctions from the Court to prevent companies from making misleading claims in their ads.

“On 1 July 2007, a new and important regulation governing nutrition and health claims for foods came into force. The regulation is complex and mandatory. CAP encourages advertising industry stakeholders to take advice on the effect of the regulation and to consult the Food Standards Agency’s Guidance to Compliance with Regulation (EC) 1924/2006 on Nutrition and Health Claims on Foods, which is available at http://www.food.gov.uk”

CAP code integration of NHCR

With this in mind many in the industry have been concerned with the early implementation of decisions on nutritional products and ingredients by EFSA’s Dietetic products, nutrition and allergies (NDA) panel. Although at present we have many products and ingredients, which have received a negative opinion from EFSA. Many of these claims are nothing to do with the science on the claims but rather other issues such as characterisation. Is it possible that the ASA could use these decisions to block your marketing claims? They may try!

On December 11^th 2007 the UK’s Department of Health and Foods Standards Agency (FSA) wrote to the Infant and Dietetic Foods Association (IDFA) informing them they would be implementing the labelling and advertising principles laid out in Commission Directive 2006/141/EC. This directive limits the nutritional claims manufacturers can make for their products i.e. it is illegal to claim that a formula is similar to breast milk. According to the regulation the measures were not enforceable until 1st January 2010, however the FSA wanted to bring its implementation forward by 2 years to 11^th January 2008. This would mean any manufacturers, suppliers or retailers making such claims would be open to criminal liability if they continue sale past this date.

In a bold move a defence of the industry the IDFA believed the decision unlawful and successfully brought about an injunction via Judicial review against the government (Secretary of State). The transition period is now as outlined in the directive. In relation to the NHCR this suggests than the regulation, which should have the community list in place January 2010 should be enforceable by that point. However, many issues suggest the market will be able to play for time and avoid the ASA utilising this regulation to remove claims form the market.

This decision shows that looking closely at what are the key factors in the regulation in relation to implementation and transition periods are key to keep your current claims on the market. Issues which a legal challenge could be mounted if any reference to the regulation is used in a ASA decisions using the CAP code and / or reference to the NHCR include : 1. transitional measures – For food this means health claims can be used on label for 12months following the adoption of nutrient profiles (Currently there is no adoption). 2. In other circumstances (this is not an all inclusive article other transitional measures apply but not discussed) health claims may continue to be used for 6 months after a decision is taken.

At present we have many ingredients and products which have no decision completed as defined by the full authorisation procedure, which means most products will have until at least July /August 2011 to continue with their claims, whilst building a marketing strategy to deal with the regulation post-transition. In addition to these direct relationships to the NHCR we have implementation by each member states and in the UK discussions will continue with LACORS (Local Authorities Coordinators of Regulatory Services) and other bodies on real time sell trough timelines.