Is that label legal?

    5 May 2016

    Health claims about nutrition are nothing new: an apple a day keeps the doctor away, eating carrots helps you see in the dark. However, write that on a bag of carrots these days and your local trading standards officer may instruct you to remove the words as the claim relating to vitamin A and night vision was not appropriately proven.

    That’s because health claims for nutrients in food and supplements are subject to strict EU regulations under guidelines decreed by the European Food Safety Authority (EFSA). This began a decade ago, then some beefed-up rules came into play in 2012. The objective was ‘to ensure that any claim made on a food’s labelling, presentation or advertising in the European Union is clear, accurate and based on scientific evidence’. This protects the consumer but also, according to the website, ‘promotes innovation and ensures fair competition’. The rules apply whether the claims originate from a faceless multinational or are written on the blackboard of your local juice bar or café.

    These regulations cover food groups as well as individual nutrients. No longer can one say that a product is, say, high in fibre, unless it contains at least 6g per 100g or at least 3.5g per 100 kcal. We know that fibre is a good thing in general, but if someone wants to be more specific, then the precise wording in the authorised claim mentions an ‘increase in faecal bulk’. (Imagine seeing that written on the side of a packet of bran flakes.) Similarly, a nutrient can’t even be mentioned in relation to food unless the food contains at least 15 per cent of the Reference Nutrient Intake (RNI) set by government. For example, one can’t write ‘contains vitamin C’, about anything unless it contains 6mg per 100g, which qualifies as a ‘source of vitamin C’. If you want to say ‘high in vitamin C’ there has to be 12mg per 100g. Making a claim about a food or nutrient is a lengthy, complex and costly business, as the EFSA requires rock-solid research. To date there are 256 authorised claims linked to areas of health including cholesterol, energy, hair, skin, immunity, digestion, fat metabolism etc, etc. More than 1,500 have been rejected and are thus classified as ‘non-authorised’.

    When the rules came in, the food industry busily rewrote copy, although there was some confusion as to how authorised claims could be used in an appealing way. Instead of saying their product was ‘packed with antioxidants’ would they now have to include the exact wording of the relevant claim, namely: ‘contributes to the protection of cells from oxidative stress’? Doesn’t quite have the same ring, does it? Or could they simply use the word ‘antioxidant’? Manufacturers and retailers worked hard to understand the new rules and change accordingly, but not all, not by a long shot.

    Enforcing these rules in relation to the huge amount of claims on packaging, in marketing materials and online has fallen to already-busy trading standards officers. I made a freedom of information request to my local London borough, asking how many cases of enforcement or fines there had been and was told that it would take 14 hours just to collate such a number, let alone supply details. I didn’t pursue the request as I felt that they had better things to do, but I would not be surprised if that meant that they were inundated with cases. Those 256 claims are supposed to be all that one can say about the health benefits of nutrients, yet I regularly see copy that flouts the rules.

    Last week I ordered a smoothie in a chain café with a reputation for healthy food. Online copy about the smoothie suggested that ‘probiotics from yoghurt & kiwi help nutrient absorption, while spirulina & spinach can increase your alkalinity, speeding up cell healing’. Sounds good, but it’s bunkum, at least according to the EU. There are no authorised claims for pro-biotics, so they shouldn’t even be mentioned, nor should nutrient absorption. Same applies to the alkalinity claim (probably because it is biochemically impossible) and as for cell healing, of course there isn’t an approved claim for such a nonsensical phrase.

    I asked their marketing department who had written this and if it was EU-compliant. They told me their information comes from their ‘in-house nutritionist and other reputable sources’ but with no mention of EU compliance, so I suspect that they are not aware of the rules. They are not alone. Daily, I tut and shake my head when confronted with menus, websites and press releases that contain unauthorised health claims.

    Does it matter? To my mind it does. We are cajoled and encouraged to improve our diets; now to the point of taxation on unfavourable foods. We need simple, direct and fair messages, rather than manufacturers who make health claims not allowed by the law. There’s enough confusion about nutrition as it is and there are plenty of legal things to be said. So it’s especially frustrating that so many retailers, restaurants and cafes continue to make ridiculous claims.