The ordinary consumer is fully aware that excessive consumption of alcohol or sugar products can lead to a number of health problems. Nevertheless, whilst food manufacturers are not strictly required to maximise the health benefit of their products, there is clearly a risk in relation to brand reputation where they seek to market products’ “healthy” qualities or encourage excessive consumption where the products has corresponding high levels of another ingredient which should not be consumed to excess.*
Health and nutritional claims regulation
The making of positive health claims will shortly be governed by regulation. There is already the prohibition against medicinal claims** but there has been a grey area in which the general healthy attributes of certain foods may be promoted.
The proposed European Regulation on nutrition and health claims is projected to come into force at some time in 2005 (although this is now more likely to be 2006). Under the proposal, no food product would be prohibited but claims on food products will have to be in compliance with the regulation, with conditions for the use of nutrition and health claims, prohibition of certain claims and scientific evaluation of the use of claims in relation to the nutritional profile of food.
Criticisms of the Regulation include the amount of bureaucracy involved will be disproportionate. For example, it will be necessary for applicants to submit copies of the wording of proposed health claims in the languages of all member states even if they intend to market the product in only one or two countries. There are also concerns about the likely length and cost of the approval process and the restrictive process stifling innovation.
There is also opposition to restrictions on implied health claims and the prohibition against endorsements from health professionals and charities. If any claim can be scientifically substantiated, then it is argued that it is not in the consumer’s best interests to prevent it from being communicated.
As a result of these criticisms and others, the speedy implementation of this regulation is being resisted. It must be hoped that amendments will be accepted that secure a sensible balance between protecting consumers and allowing substantiated and beneficial claims to be made.
Where no nutritional claim is made nutritional labelling is voluntary. The consumer magazine Which? has investigated the accuracy or otherwise of this nutritional labelling of products.
Which? reported early in 2005 to have looked at 570 nutrients listed on 70 different products and found only seven per cent of nutrients matched exactly with what the label said. 17 per cent fell outside the agreed margin of error.
Lacors, the body which advises trading standards officers about enforcing food laws, guidelines allow for the content of main nutrients to be 20 per cent either side of the labelled value, though this rises to 30 per cent for lesser nutrients making up between two and five per cent of a food.
Manufacturers are permitted to use average figures to give consumers a good indication of what the ‘typical’ nutrient content is for each product and although there is no specific law about how accurate the information on food labels should be, any significant inaccuracy may be prosecuted under the Trade Descriptions Act 1968 as being ‘misleading’ to consumers.
It is particularly important for reputational reasons and to avoid any prosecution or provide a defence of due diligence under the Trade Descriptions Act to ensure that where health or nutritional claims are made about a certain ingredient that this is substantiated in the finished product and there are checks within the system to monitor the accuracy of this.
Consumer’s understanding of labelling
The FSA started consultations on an appropriate food labelling system in November 2004.
The FSA has reported that consumers felt that any signposting system should be independent from the food industry, with many naming the Agency as the appropriate recognisable body. Of the five concepts tested, two had significantly more promise than the others.
- A ‘simple traffic light’ system (option A) – where foods are labelled with a single green, amber or red traffic light on the basis of their overall contribution to a balanced diet
- A ‘key nutrients’ system (option D) – which rates each nutrient, for example as high (red), medium (amber) or low (green)
The FSA research also took some initial views on the application of signposting to catering establishments, with the intention of informing more research at a later date. It was stated by the FSA that consumers’ views on signposting in catering outlets varied significantly depending on the context, the type of outlet and how often they were likely to eat there. It was stated that a system operating in catering would need to take account of the diversity of the catering sector and for this reason, consumers felt that the same system could not be applied across both the retail and catering sectors. This therefore indicates the potential for two different systems already.
The FSA’s formal 12-week consultation on its research to develop a scheme to categorise foods based on the nutrients they contain ended on 25 February 2005. The outcome of the nutrient profiles research could help underpin some of the signposting options. The FSA has stated that people would like simple labelling signposts to help them make informed and healthier food choices.
However, the onus should be on simplicity and uniformity and this does not fit in with the different nutritional requirements for different members of the population nor for the vast number of different nutrients that are contained in particular foods.
The European Food Information Council (EUFIC) undertook a study into food labelling and consumer understanding of them. The full report may be accessed at http://www.eufic.org/gb/heal/heal12.htm
The study, involving French, German, Italian and UK consumers, found that there was an understanding of both the benefits of nutrition and ‘healthy and balanced eating’ but that the terminology used on the labels was not really understood. Consumers from all four countries disliked the small print used on nutritional labels for being “too technical”.
In response, EUFIC advised companies to make more of an effort to explain the complex terminology to consumers through the use of readable, clear, attractive and well-structured labelling. The EUFIC condemned the low fat and light labels used on food packaging for being “restrictive” and “negative” and urged food manufacturers to keep such labels simple, despite proving increasingly popular among both consumers and manufacturers.
But contrary to governmental labelling proposals, such as the incorporation of a nutritional traffic light labelling system onto UK food packaging, EUFIC believes that the nutrition system “is not about qualifying into good or bad products, it is about helping to integrate any product into a good diet”.
EUFIC concludes there are many things in the current labelling terminology that can be improved. However, as long as consumers lack a basic understanding of nutritional terms and requirements, the label information will be lost on them. There is an immediate need therefore for better nutrition education and improved nutrition knowledge.This is the big challenge for government, educators, health professionals and all operators in the food chain.
The aim of further voluntary labelling by way of signposting of foods, would in itself appear praiseworthy. However, this seems to be bypassing the very essence of achieving a balanced diet and that is educating consumers as to what a healthy diet would consist of.
Consumers already know that certain foods contain more energy than others, and that excessive consumption can cause weight gain. The agreed nutritional and health claims regulation, when implemented, will harmonise the making of positive health claims in relation to products across Europe. Reports were also provided in January 2005 that the European commission was intending to consult on proposals for EU-wide labelling norms. If EU rules were aligned to international standards, industry would have more flexibility in marketing their products anywhere in the world without needing to re-label them.
Any voluntary proposals implementing the making of explicit claims or labelling for foods by way of signposting or any other device will therefore fly in the face of efforts of harmonisation, be unenforceable, and unfair due to inconsistencies between markets, inconsistent by reason of different approaches that will be taken by different manufacturers, and thereby unintelligible to consumers.
* The risk of litigation would also be a possibility especially if there is a specific ingredient which may be shown to cause a specific ailment in order to provide the causal connection between the excessive consumption and the injury, also as we have seen even failed lawsuits may have an enormous effect in terms of time, cost and reputation.
** In October 2004 Asda was fined £5000 for claiming mangos had anti-cancer properties. “ Swindon Borough Council decided to prosecute as this breached the Food Labelling Regulations 1996 which strictly prohibited any claim that a food has the property of preventing, treating or curing a human disease or any reference to such a property.” (Schedule 6 Part 1 section 2)
This article first appeared in our Food industry law bulletin May 2005. To view this publication, please click here to open a new window.