Last month, the European alcoholic beverages sectors handed over to the European Commission a self-regulatory proposal on the provision of nutrition information and ingredients listing. Article 16(4) of the Food Information for Consumers (FIC) Regulation exempts alcoholic beverages containing more than 1.2% by volume of alcohol from the mandatory list of information and nutrition declaration. Nevertheless, it also attributes the Commission with the task to investigate whether and to what extent alcoholic beverages should nevertheless be covered. Last year, the Commission established in its report, amongst others, that the provision of nutrition information and ingredients listing could help consumers to make informed choices about what and how much to drink. The alcoholic beverages sectors have been asked to present a self-regulatory proposal to respond to consumers’ expectations as they have done last month.
In their proposal, the alcoholic beverages sectors elaborate on the details on the communication of the nutrition information, the list of ingredients, and the means of delivering this information to consumers. The sectors aim to provide consumers with meaningful information while preventing to create new burdens for SMEs. In this blog we give a short overview of the proposal, which should be read together with the sector-specific annexes for beer, cider, spirits and wine that allow for sector-specific implementation of the proposal.
According to the FIC Regulation, nutrition information must be given per value of 100 ml of the product and may additionally be provided per portion size. Nutrition information involves the energy value and the amounts of fat, saturates, carbohydrate, sugars, protein and salt, but may also be limited to the energy value only. The spirit sector emphasizes in its annex that it is most meaningful for consumers to provide the information in portion size and adds that the energy value per 100 ml might be misleading, as spirits are never served in this quantity. To provide accurate nutrition information, food business operators may carry out analysis on their products or they can use generally established and accepted data. The alcohol beverages sectors stress the importance of the latter option due to the changing nature of certain alcoholic beverages as they age (wine) and depending on the harvest (e.g. cider). Moreover, said data will also reduce the burden for analysis by SMEs. The wine and spirits sector have already provided such a toolkit in their annexes to the proposal, using average values of typical and characteristic wines. For instance, 100 ml of brut, sparkling wine provides 70 kcal.
As for the list of ingredients, Article 20 of the FIC Regulation excludes food additives or food enzymes used as processing aids from this list. The wine sector specifies that this means that only additives permitted for wine-making not considered processing aids during the wine-making process shall be included in the list of ingredients. Moreover, the sector notes that natural substances used to adjust the grape composition (acidity and natural sugar content) do not have to be listed; those substances only aim to restore the basic balance and composition where harvest conditions are not optimal. The wine annex is already rather concrete in the sense that it shows in its appendix I a list of oenological compounds that, when used, will have to be included in the list of ingredients.
Lastly, the proposal embraces new information and communication technologies to inform the consumer on the nutrition declaration and list of ingredients. This is in line with recital 51 of the FIC Regulation, according to which food information rules should be able to adapt to, amongst others, a rapidly changing technological environment. Next to traditional on label information, off-label information that can be accessed via a web-link, QR code, bar code or other direct means of using smart technologies are suggested in the proposal. The wine sector refers in its annex for example to the website of ‘Wine in Moderation’ as a tool to comply with labeling requirements by off-label means. The alcoholic beverages sectors propose to leave it up to the food business operators how to display the information.
The alcoholic beverages sectors commit themselves to report on implementation in March 2021. The proposal will now be assessed by the Commission. Green light will allow for high spirits to make information on alcoholic beverages crystal clear. However, all four sectors (beer, cider, spirits and wine) must be working hard on more concrete implementation guidelines that can be used by their member companies, who have to do the actual job. For the time being, the wine and spirits sector so far have elaborated the most concrete proposals. We will continue to monitor and report on further developments in this field.
In their search for healthy foods, consumers nowadays often favour natural food products. But what is “natural” after all? Various interpretations could be given to this term. Amongst those figure unprocessed foods, foods without any chemical ingredients and organic foods. In reality, there is no harmonized concept of “natural foods” under EU food law. Food business operators should therefore mainly rely on the general principles of food information. In addition, they can use the nutrition claim “natural(ly)”, if and when applicable. Finally, they can turn to some specific pieces of EU legislation implementing the concept of “natural” for specific product an to a new ISO standard. This post aims to investigate what are the options for using the term “natural” based on the EU framework.
The most important principle under EU food law is that food information should not be misleading, in particular as to its characteristics, its nature and its composition. As such, it is prohibited to suggest that a food has particular characteristics, whereas in fact all similar foods possess such characteristics. For instance, certain additives, such as sweeteners or acids, may have a natural source, but the EU Additives Regulation does not make a distinction between “natural” or “artificial” (chemical) additives. Therefore, stating that a food product only contains natural preservatives could be misleading. The industry seems to have found its way around this issue. Instead of declaring an additive using the applicable E-number (for instance E 250 for sodium nitrate), the description of a natural compound having a similar technical function is used (for instance chard, having a similar preservative effect to sodium nitrate).
Where a food product naturally meets the conditions laid down in in the EU Claims Regulation for the use of a nutrition claim, the term “natural(ly) may be used as a prefix in the claim. For instance, if at least 20 % of the energy of the food product is naturally provided by protein, the claim “naturally high in protein” could be made regarding such product. Likewise, if a food product naturally contains at least 6 g fibre per 100 g product, the claim “naturally high in fibre” could be made. These claims should all relate to end products presented to consumers. As a B2B supplier of ingredients, you should therefore make the reservation to your clients that the admissibility of these claims depends on the mix of ingredients present in the end product.
The EU Flavouring Regulation constitutes a good example of targeted legislation with specific provisions on the use of “natural”. For instance, if the term “natural” is used to describe a flavour, the flavouring components should be entirely of a natural origin. Nevertheless, the term “natural flavouring” can be used in a situation where a clear relationship between different source materials in the flavouring component and the overall flavour-profile is lacking. For instance, an umami flavouring preparation consisting of certain vitamins and minerals in combination with certain fermentation media can still be labelled as “natural flavouring”.
The Dutch Advertising Code Committee (DACC) demonstrated in one of its decisions last year that the rules on the use of the term ‘‘natural’’ under the EU Flavouring Regulation can also be applied by analogy. The claim in the case in question related to BenBits chewing gum advertised as being “100 % natural”. A competitor denied that all ingredients used in this chewing gum were of a natural character. In deciding the dispute, the DACC took the expectation of the average, reasonably well-informed consumer as a starting point. Such consumer would expect the term “natural” to cover both the ingredients and the preparation processes used. BenBits could not demonstrate that the xylitol used in its product had been manufactured in accordance with one of the traditional preparation processes referred to in the EU Aroma Regulation, such as fermentation. The use of the claim “100 % natural chewing gum” was therefore considered misleading.
Recently, a new ISO standard was made available, containing technical criteria for food ingredients to be considered as natural. This standard is intended for use in B2B communications and conformity thereto helps to assure a level playing field and fair practices. According to this standard, food ingredients shall be considered as natural when certain criteria regarding both their source materials and their ways of processing are met. When a food product consists of various ingredients, for each ingredient these cumulative criteria should be met. An informative decision three in this standard helps its user decide whether or not a food ingredient is to be considered natural.
At Member State level, such as in the UK and in France, national guidance has been formulated for the use of the term “natural”. For instance, the UK Food Standard Agency issued guidelines for the use of this term and in France the Directorate General on Competition developed similar guidelines specifically targeting dairy products. These Guidelines, as well as relevant EU and national case law will be discussed during the Vitafoods session planned on 16 May from 11.20 – 12.00 AM. Hope to see you there!
Consumers across all demographics are increasingly concerned about cognitive health and performance. For that reason, Food Matters Live, held in London from 21 – 23 November last, dedicated one of its Seminars to the exploration of new R&D advancing the understanding of nutrition and cognitive health and performance. I was asked to give a presentation on meeting standards for cognitive claims, of which you will find a summary below. You will note that in addition to the system of currently authorised claims, I will explore its flexibility, as well as the options outside its scope.
The general framework for health claims is contained both in the FIC Regulation and in the Claims Regulation. The FIC Regulation embodies the principle of fair information practises. According to this principle food information should not be misleading as to the characteristics of the food, for example by attributing it effects it does not possess. Furthermore, the FIC Regulation prohibits any medical claims to be made in connection with food products. A medical claim is to be understood as any claim targeting the prevention or treatment of a particular disease. It is for instance not permitted to state that a food supplement alleviates the symptoms of rheumatoid arthritis.
The Claims Regulation lays down the very concept of a health claim, being a voluntary message in any form that states or suggests that a food has particular characteristics. Basically, a health claims conveys the message “What does the product do?” Health claims can only be made with regard to a particular nutrient that has been shown to have a beneficial nutritional of physiological effect. Such nutrient should be present in the end product in a form that is bio available and to such extent that it produces the claimed effect. The scope of the Claims Regulation includes all commercial communications regarding food products to be delivered to the final consumer. Based on the Innova / Vital decision of the ECJ, it was clarified that such final consumer can also be a health care professional.
Legal framework for cognitive claims
Currently, authorised claims for cognition can be linked to iodine, iron and zinc. For all of these compounds, the claim “contributes to the normal cognitive function” can be made. In addition, for iodine the claim “contributes to the normal functioning of the nervous system” is available and for iron a claim specifically targeting children can be made. The conditions of use for these claims are calculated on the reference intake (“RI”) applicable to each mineral. As such, a distinction is being made between solids (15 % RI) and fluids (7.5% RI). For instance, in order to allow a cognition claim linked to iron, the end product should at least contain 2.1 mg iron / 100 g or 1.05 mg / 100 ml. Any claim should refer to a food product ready for consumption, prepared in accordance with the manufacturer’s instructions.
Flexibility in wording
In practise, I see that many food business operators try to reword the authorised claims, as they are not considered to be a major add-on. In the Netherlands, this practise has been facilitated by the Council for the Public Advertising of Health Products (Keuringsraad KOAG-KAG), who has published a list of alternative, authorized claims. For instance, for a claim on zinc, the Dutch translation of the wording “contributes to a regular problem-solving ability” is permitted as an alternative. Regarding a claim on iodine, you could think of “plays an important role in mental activity.” Furthermore, it is also permitted to state that a food product containing the required minimum of iron “contributes to regular intelligence”. Now we are talking!
Examples found in practise
An internet search for products targeting cognition revealed that many of them are not linked to the EU authorized claims at all. For instance, the company Flora Health is marketing the food supplement ginkgo biloba, claiming that it “helps to enhance cognitive function and memory in an aging population.” Also, the food supplement Mind Focus containing various vitamins, minerals and green tea extract from the company Bio Fusion was found, which allegedly “improves mind focus and concentration instantly”. Furthermore, the green oat product Neuravena was found, regarding which five clinical studies confirm it benefits to cognitive function. How can this be explained? The first two examples contain claims that in the EU would no doubt qualify as medical claims and as such are prohibited.
Non-EU products and options outside cognitive claims framework
Products that do not comply with EU standards may originate from other countries or territories that are subject to a different regulatory regime than applicable in the EU. Without endorsing any claims made, it was found that the gingko and Mind Focus products originated from Canada and the US respectively. The same is not true for the product Neuravena, as its manufacturer Frutarom claims to be a “global manufacturer of health ingredients backed by the science, and supported with documentation and the regulatory compliance our customers demand.” The difference here is that Neuravena is not advertised on a commercial setting targeting end consumers, but in a scientific portal. The website even contains a disclaimer to that extent. In a non-commercial, purely scientific environment, the Claims Regulation is not applicable. This allows FBO’s, provided that the same website does not contain a click through ordering portal, to communicate on their R&D and cognition even outside the authorised EU framework.
The EU authorised claims for cognition are limited in number and scope. Several EU Member States offer considerable flexibility in wording, which makes the use of claims much more appealing. Furthermore, in a science-based context, the Claims Regulation is not applicable, which allows you plenty of opportunity to communicate your latest R&D on nutrition & cognition, provided that the message is strictly scientific and not commercial.
The European Court of Justice (ECJ) recently took its decision in the TofuTown case, providing clarity on the interpretation of the Agricultural Product Standards Regulation (APS Regulation). In short, this case dealt with the question: “Is it possible to use regulated product names for new product types?” The answer to this question is a clear “no”. This came as quite a shock to the emerging vegetarian and vegan market. Many companies marketing alternative protein products use traditional product names for their dairy replacements. They may have to change these names, as they are no longer in line with the view of the highest EU Court.
Initiator: Verband Sozialer Wettbewerb
The TofuTown case was initiated by the German unfair competition association Verband Sozialer Wettbewerb (“VSW”). This activist organisation was also at the origin of the Innova Vital case, clarifying the scope of the EU Claims Regulation. Based on this decision, we now know that the Claims Regulations not only targets commercial communications addressing final consumers, but under certain circumstances, it also addresses communications made to health care professionals. VSW initiated the present case against the German company TofuTown, as it claimed the promotion of strictly plant-based products under denominations such as “Soyatoo Tofubutter”, “Pflanzenkäse” and “Veggiecheese” infringed the EU competition rules.
Main rule of Agricultural Product Standards Regulation
The legal framework of this dispute is constituted by the APS Regulation, containing detailed agricultural products definitions in various sectors, such as cereals, olive oil, wine, milk and milk products. The main rule following from the APS Regulation is that the names of regulated products may not be used for other products. TofuTown had argued, in essence, that this principle is outdated. In the past, such rule may have been justified to protect consumers against manufacturers distributing cheap products as dairy products, thereby gaining a competitive advantage. Nowadays, consumer awareness has changed considerably and many consumers want to be informed about alternatives to dairy products. Using regulated dairy names for plant-based alternatives is not meant to mislead consumers. Quite to the contrary, such use enables to inform the consumer on plant-based origin of their products as opposed to the animal derived dairy products they intend to replace. The ECJ did not agree with this argument. It is nevertheless worthwhile to investigate if any other argument could escape the strict product name regime embodied in the APS Regulation.
Room for manoeuvre in APS framework?
On the face of it, there is. The Commission is empowered to adopt delegated acts concerning exemptions to the strict product definitions laid down in the APS Regulation, provided these shall be strictly limited to demonstrated needs resulting from evolving consumer demand, technical progress or the need for product innovation (see article 78.3 APS Regulation). Tofutown’s plea for informing consumers about plant-based alternatives to dairy products seems to fit in seamlessly in this derogation. However, for the time being, there is no such delegated act, so that it is worth while exploring if there any further exceptions to the strict product names principle embodied in the APS Regulation.
In fact, two of these exceptions are being mentioned in the TofuTown case. In the first place, designations for milk products may also be used in association with words designating composite products. The condition precedent is that no part takes the place of any milk constituent. Furthermore, milk should also be the essential part of such composite product, either in terms of quantity or for the characterisation (see Annex VII belonging to the APS Regulation, in particular Part III, nr. 3 thereof). An examples of such composite product names is chocolate milk.
Another exception to the system of strict product names relates in the first place to products the exact nature of which is clear from traditional usage. In the second place it covers designations that are clearly used to describe a characteristic quality of the product. The Commission has drawn up a limitative list of such product names that can be found here. Examples of such product names are the following:
- UK: horseradisch cream, cream crackers and coconut milk
- France: almond milk (lait d’amande) and oat cream (crême d’avoine)
- Spain: almond milk (leche de almendras)
- Netherlands: butter beans (boter bonen) and cacao butter (cacao boter)
This list has a highly cultural character and does not allow for translations of the product names mentioned therein into other Member States languages. As such, it would be prohibited to market almond milk in or any other EU country than France and Spain. The same goes for butter beans outside the Netherlands.
It could be argued that names like “Tofubutter” and “Veggiecheese” are clearly used to describe a characteristic quality of the product. However, as long as they are not mentioned on the Commission exemption list, these cannot be legally used for marketing plant-based alternatives to dairy products. More in general, the practical consequences of the TofuTown decision are expected to bring about serious restrictions for marketing plant-based products. Is this to be considered a setback for the consumer or to the contrary, will this prevent any consumers being misled? In fact, this is besides the point, as based on this decision, the enforcement authorities, like the Dutch Food Safety Authority (“NVWA”) in the Netherlands, will be authorised to prohibit further use of strictly regulated product names for their vegetarian peers. It will be interesting to see though if any enforcement actions will take place based on the mere product name. And also, will this be in the interest of the educated consumers of today? That’s certainly not beside the point.
Can unhealthy foods enter the ‘health halo’? The boundaries of health claims in the absence of nutrient profilesPosted: July 18, 2017 | |
To date, about 30% of pre-packed food products marketed in the EU have entered the ‘health halo’, attracting consumers by scientifically proven health benefits. The Claims Regulation provides that food products must comply with so-called nutrient profiles in order to bear health claims. Although the Commission had to establish these nutrient profiles by 2009, it is a well-known fact this has not yet been achieved. This might sound like a carte blanche for the food industry to guide consumers in their dietary decisions. Quite to the contrary, ‘common sense’ seems to set the boundary for food products that can carry health claims. The Court of Justice of the European Union (“ECJ”) recently demonstrated in the Dextro case (for an English summary, see here) that there is no unlimited freedom for advertising essentially unhealthy foods. This decision must be seen in the light of society’s battle against obesity and other adverse health effects related to food products high in fat, salt and sugar (“HFSS foods”). The current post puts the Dextro decision into context and aims to deduce some learning therefrom.
The German company Dextro Energy is known for its cubes almost entirely consisting of glucose. Back in 2011, the company requested the authorization of 5 claims stating the positive effects related to energy and muscle function that consumption of the cubes brings about. Examples include: “glucose supports normal physical activity” and “glucose contributes to normal muscle function.” Following the official procedure to have such a claim authorized, the cause-and-effect relationship between the consumption of the glucose cubes and the claimed health benefits needs to be proven by EFSA. While EFSA did provide a positive opinion, this did not result in an authorized health claim. The Commission has the last say in the procedure, including political, social and economic concerns into its decision. In the Dextro case, the Commission reasoned that the claims conveyed a ‘contradictory and ambiguous message’ to consumers. Although the human body needs a certain amount of glucose, the claim contradicts the current trend of the equally scientifically underpinned advice to reduce of sugar intake. According to the Commission, additional statements or warnings would not make up for the misleading claims. Dextro Energy challenged, amongst others, the Commission’s discretion to disallow a scientifically proven health claim. Both the Court in First Instance and the Court of Appeal countered the company’s arguments.
Setting the scene: health claims on other sugary products
The decision of the ECJ did not come as a surprise. Last summer, the European Parliament rejected controversial caffeine claims on energy drinks. Similar to the considerations in the Dextro case, health claims on sugary products were feared to nudge consumers towards poor consumption choices. Also, the request by Kinder Chocolate for authorization of a health claim on milk contributing the child development has been rejected. This rejection took place on a different ground, as the request was considered to lack the required scientific underpinning. Barry Callebaut was more lucky with its request for authorization of a health claim on cocoa flavanols in cocoa beverages with cocoa powder, dark chocolate, capsules or tablets. The claim refers to a beneficial contribution to the normal blood circulation and so the maintenance of elasticity of blood vessels. Of course, this claim might stimulate chocolate consumption. The difference, however, lays in the fact that the focus is on cocoa flavanols as bioactive compounds in cocoa extract. As opposed to the aforementioned substances glucose and caffeine – which are already controversial themselves – no HFSS food is directly involved. The claim was approved in 2015, being the first in kind in the chocolate field.
Industry pleas for nutrition profiles
Nutrition profiles were meant to prohibit nutrition and health claims on essentially unhealthy foods. As their establishment took so long, thereby creating uncertainty for the industry, the European Parliament initially considered to call them off. However, as shown in the Dextro case, the absence of nutrient profiles caused the Commission to rely on the very general principle of misleading in the appreciation of the claims at stake. This is the key item in food information matters both embodied in the Claims Regulation (article 3 (a)) and the Food Information to Consumers Regulation (article 7 (1)). As this concept of misleading is pretty broad and thereby not well-defined, food companies introduced a plea in favor of the establishment of nutrient profiles. This would shape the level playing field for all FBO’s and ensure that unhealthy foods cannot be promoted using health claims. Five leading food companies have recently called on the Commission in a public letter to take up its task of establishing nutrient profiles. Health and consumer organizations were also involved in the letter, arguing that a clear exclusion of nutrition and health claims on HFSS foods will benefit consumer behavior.
The road forward
To prevent ambiguous health claims, the prohibition of such claims on beverages containing more than 1,2% alcohol is already explicitly mentioned in Health Claims Regulation. Will claims on HFSS foods be limited in the same manner? The open letter by the industry and other relevant parties is a push into that direction. The establishment of nutrient profiles could mean that the beneficial health effects attributed to cocoa flavanols can no longer be used on those chocolate products classified as ‘unhealthy’, for instance due to their high sugar content usually present in milk choclate. However, at this moment, it cannot be predicted whether the Commission will take up its task after about 10 years of delay. Meanwhile, the ECJ backs the criterion of misleading to fill the regulatory gap. Based on the examples mentioned above, ‘common sense’ based on generally accepted scientific principles provides the line between acceptable use of health claims and misleading practices.
As demonstrated in the Dextro case, health claims on HFSS foods are perceived misleading in society’s current fight against obesity and other diet-related disorders. The ECJ backed a Commission decision rejecting Dextro’s claims, considering the pro-glucose plea contained therein to be in violation of the principle that food information should not be ambiguous and misleading This case is not the first of its kind. Other examples of claims possibly driving consumers towards unintended unhealthy food choices include caffeine in energy drinks. As a consequence, those claims were rejected too. The general learning that can be drawn from these cases is that claims should not be considered in isolation, but in the context of generally accepted scientific standards. As an advice to FBO’s considering filing or using such claim, I recommend not to lose an eye for the context in which the claim is used. This basically comes down using common sense when using or applying for health claims. Does not that make sense?
The author is grateful to Jasmin Buijs, intern at AXON, who co-wrote this post.
During the two days event in Wageningen, on 17 and 18 May this year, food start-ups will have the opportunity to give their best before an audience of seasoned investors. In the same time, those investors will have the chance to satisfy their appetite for tasty food start-ups. During this event, Karin Verzijden will moderate a debate between food start-ups on the convergence of food and health. The Q&A below provides a sneak peak into the topics that will be touched upon during that debate.
F&A Next: What is “healthy food” and to what extent food can contribute to health?
Karin: Although there is no such thing as a definition of healthy food, there are numerous guidelines on healthy diets. At the end of 2015, the WHO published a report that shocked food business operators (“FBO’s”), especially those involved in the meat industry. One of the WHO recommendations was to eat less processed meat, as the consumption of 50 g processed meat per day would increase the chance to develop colon cancer with 18 %. In line therewith, the Dutch dietary guidelines 2015 (“Richtlijnen Goede Voeding”) published by The Health Council propagate that a shift in the direction of a more plant-based and less animal-based dietary pattern improves health. In general it can be stated that according to various different health organisations, the consumption of certain foods or refraining therefrom can certainly contribute to health.
F&A Next: How do specific groups benefit from e.g. personalized food?
Karin: Specific groups of people may require specific types of food. For instance, it is known that elderly people recovering from surgery in the hospital lose a lot of muscle mass. They could benefit from so-called food for special medical purposes rich in protein. Anticipating that such food will enhance their recovery, this may in the end reduce hospitalization time and thereby costs. For the time being, this is as close as its gets to personalized food, but this may be different in future.
F&A Next: How “personal” is food likely to become and what type of legal issues may come into play?
Karin: In the future, it is conceivable that food will be delivered through the use of 3D-printing, both in a care setting and at home. In a care setting, one could imagine that very fragile patients having swallow problems could benefit from smooth printed food delivered on their plate in a very attractive way. When a hospital nutritionist would like to add extra vitamins or minerals, it is very likely that the upper limits laid down in the legislation on fortified foods needs to be taken into account. Furthermore, both in a home and care setting, interesting questions as to food safety may occur. For instance, when safety of 3D-printed food is compromised, who would be responsible for that? The manufacturer of the 3-D printing machine, the supplier of the raw materials or the user of the 3D-printing device, who in fact has promoted from a consumer into a “prosumer”? Finally, when 3D-printed foods hit the market as end products, they may be covered by the Novel Food legislation on new production methods. This would imply that such product would require a market authorization prior to marketing.
F&A Next: How can FBO’s communicate on potential health benefits of food without incurring the risk that they advertise a medicinal product or a medical device?
Karin: In the EU, there is a well-defined framework for nutrition and health claims to advertise health benefits of food products. A nutrition claim implies that a food product has certain beneficial properties in terms of nutrients and energy (“What’s in the product?”). Health claims state there is a relationship between food and health (“What does the product do?”) As long as the FBO sticks to the authorized claims (of the allowed variations) and they satisfy their conditions of use, there is no problem to be expected. FBO’s should however stay away from claiming that their food product can prevent or cure certain diseases, as they then clearly enter in to the medical arena. Based on criteria laid down medicinal products legislation, food and health authorities are authorized to take enforcement measures regarding food products that are advertised as having such medicinal properties. This can result into serious fines of six digits.
F&A Next: What actions are required from FBO’s to substantiate the health effects of their food products?
Karin: This depends on the type of claim made. For instance if the FBO claims his product is high in protein, he has to be able to justify upon request that the 20 % of the energy value of the product is provided by protein. When a FBO claims regarding a barley product that barley beta-glucans may reduce blood cholesterol, whereas high cholesterol is a risk factor in the development of coronary heart disease, he should meet very specific criteria on the level of barley beta-glucan (3 g per day). Finally, when a FBO wants to obtain a so-called proprietary claim, he should initiate clinical trials in order to identify the relationship of cause and effect between a particular nutrient and its alleged health effect.
December is the month of festivities and food. Could insects be part of this tradition in the long run? On 8 and 9 December last, the InsectCentre organized seminar on edible insects in Wageningen. The seminar brought together the insect rearing business of Europe, as well as investors and academics, to discuss opportunities and restrictions for insect rearing in Europe. The seminar covered insect autonomy, insect rearing, economics and legislation. For some background information on the opportunities of insect rearing in the Netherlands, see this document. The focus of this blog will be on the legislation regarding insects in food and feed as discussed in the seminar, combined with our sector knowledge by way of background.
Why the interest in insects?
Insects are extremely versatile and can be put to use in many ways. Insects are the most species rich class of organisms on earth, of which (approximately) 2.500 species are edible. In EFSA’s 2015 report on ‘Risk profile related to production and consumption of insects as food and feed’, 12 of the 2500 edible species are mentioned as having the biggest potential to be used in food and feed. In other parts of the world, insects are a staple food and some insects are even seen as a delicacy. The two most commonly commercially reared insects in the EU for feed applications are the larvae of the black soldier fly and for food applications the lesser mealworm (buffalo) seems to have the best potential. Many insects are pathogenic or too small in size to be commercially interesting to rear. However, during the past years, steady growth in the worldwide demand for alternative protein sources has lead to a renewed interest in insects as a potential source of food and feed. Insects can be viewed as mini short cycled livestock for producing protein. Insect protein is an interesting source of protein due to the quality of the insect protein as opposed to plant-derived protein. Animal protein (so also insect derived protein) has a superior amino acid content compared to plant-derived protein. With a growing world population, the demand for meat production and protein will only increase. Currently soya is imported into the EU for feed purposes. Insects might be a (partial) replacement for this soya in the future, and can even be produced in the EU instead of being imported.
Insects in food
Insects can be reared to produce food as a whole or processed as ingredients for food. As explained in one of our previous blogs, only in some Member States a number of insects are permitted to be used in food, meaning that no enforcement measures regarding such use is taking place. The previously mentioned EFSA report contains the assessment of the risks associated with insects used in food and feed. In short, the overall conclusion was that the safety of farmed insects for use in food and feed strongly depends on both the substrate and the processing of the insects. Further research is needed to be able to fully assess the safety of insects to be used in food and feed.
Current and future regulatory status of insects
Under the current Novel Food Regulation, whole insects are not explicitly regarded as Novel Foods. The rationale therefore is that the category of “food ingredients isolated from animals” are not considered to cover animals (insects) as a whole. However, this will change under the new Novel Food Regulation, entering into force on 1 January 2018, as of when insects will be considered Novel Foods. See our previous blog for further info on the contents of this regulation and the changes in respect of the current Regulation. Under the new Novel Foods regime, it remains to be seen how the competent authorities of the Member States will deal with FBO’s currently using insects in food.
Enforcement as of 1 January 2018
Even if EFSA concluded that additional information is required to assess the safety of insects in food in full, considerable experience has been gained already with the application of insects in food. As far as we are aware, no safety issues have been reported regarding these applications. As safety is the bottom line for enforcement, we take the view that enforcement measures without any safety incidents are not justified just like that. This in particularly applies with respect to products containing only a small percentage of insect derived protein. On the other hand we know that insect manufacturers are using the transition period until 1 January 2018 to compile a full Novel Food dossier based on the Guidelines that were made available in September this year. Taking into account that the new Novel Foods Regulation also contains a regime for data protection, they justify the investment involved to secure a competitive edge the field of alternative protein.
Insects in feed
Two restrictions currently hinder the growth of the insect sector for feed production. The first is a prohibition of certain types of animal protein in feed, commonly referred to as the ‘feed ban’, and secondly, the restrictions on certain types of feed for the insects.
The feed ban, was introduced as a reaction to the BSE crisis, and is laid down in the TSE Regulation. This ban prohibits the use of animal derived protein to be used in feed for farmed animals, unless an explicit exception is made. Insects could have a great potential in feeding farmed animals such as poultry and pigs and also for use in aquaculture. Currently the possibilities for feeding insects to farmed animals and aquaculture animals are limited. However, the European Commission published a draft amendment to the TSE Regulation to partially uplift the feed ban. The amendment will enable the use of certain insects for the production of Processed Animal Protein (PAP) for the use in aquaculture. Discussions whether the use of PAP could be extended to poultry and pig farming are currently on going.
Food to feed the insects
In addition to the prohibition on the use of insect protein in feed, the materials that can be lawfully used to feed the insects are limited. From a circular economy point of view, the use of manure to rear insects could be attractive. In this way manure could be used to produce feed and the insects could transform the nitrate contained in the manure, that would otherwise contaminate the environment, into valuable nutrients for poultry. However, when rearing insects to produce feed, the insects are considered to be farmed animals (similar to cows or poultry). The Animal By-products Regulation prohibits the use of certain materials in feed for farmed animals, manure being one of them. The ideal situation for the insect rearing industry would be to be able to use all types of other waste stream for rearing insects. This is not possible. Currently only waste streams fit for human consumption and some waste streams of animal origin, such as milk and milk derived products, can be used as feed for insects.
During the Wageningen seminar referred to in the introduction, the overall opinion of both the presenters and participants was that European legislation currently restricts commercial use of insects for both food and feed applications. On the one hand, the new Novel Foods Regulation will bring legal certainty on the Novel Food status of insects, on the other hand it will require FBO’s marketing insect based food products to obtain a Novel Food authorization. However, for feed there is light at the end of the tunnel. We conceive the exception for PAP of certain insects to be fed to aquaculture to be a first step in getting insects on the menu for poultry and other farmed animals as well. As always, we will keep you posted on developments regarding the use of insects in both food and feed.
The author has written this post together with her colleague Floris Kets, who attended the seminar organized by the Insects Centre.
On 24 November last, the Dutch Life Sciences Conference took place in Leiden, the Netherlands. This conference brings together a large number of life sciences professionals from the Netherlands and abroad. One of this year’s sessions was dedicated to cross sector innovations, during which DSM, NutriLeads, i-Optics and Axon Lawyers shared their take on this topic. This post captures the legal presentation made during this session on cross over innovations, focussing on the applicable rules to borderline products. These rules are explained on the basis of landmark ECJ decisions and recent Dutch case law. The slides belonging thereto can be viewed here.
In order to demonstrate that it is not always easy to correctly qualify life sciences products, a few decisions from Dutch Courts and the Advertising Code Committee were discussed (see slides 3 – 7). According to a recent decision of the Dutch Supreme Court in the field of tax law, toothpaste and sun cream were surprisingly qualified as medicinal products. This case had been initiated in 2010 by two drugstores that were unhappy they had to pay the regular VAT rate of 21 % with respect to these products. According to the drugstores, these products qualified as medicinal products, to which a VAT rate of 6 % is applicable. Although their plea had been dismissed in two instances, the Supreme Court agreed with the drugstores that based on the presentation criterion (see below), both products indeed qualified as medicinal products, as they advertised therapeutic or prophylactic effects. With respect to toothpaste, this was due to the natrium fluoride protecting against caries and with respect to sun cream, the UVA and UVB filters were supposed to protect the skin against sunburn.
The case discussed above so far stands in isolation, but here are many cases that have shed light on the distinction between two categories of life sciences products, being food and medicinal products. Below you will find 5 criteria that will help you to apply this distinction. In slides 8 – 12, you will find the applicable legal sources.
- The legal product definitions should be taken as a starting point. Bottom line, medicinal products are products aimed curing, prevention or diagnosis of a disease, whereas food products are products intended to be ingested by humans.
- A distinction is being made between medicinal products by presentation and medicinal products by function. Extensive case law is available for the interpretations of these notions (see below). In case of doubt, the rules relating to medicinal products shall prevail.
- It is prohibited to advertise medicinal products without having a market authorisation. For advertising of food products, it is permitted to use authorised health claims, but it is prohibited to use medical claims.
- Medical claims are communications claiming that the advertised products improve health problems. It is a thin line between non-authorised medical claims and authorised disease risk reduction claims.
- The notion of advertising can be pretty broad. According to the Dutch Advertising Code it comprises any public and/or systematic direct or indirect recommendation of goods, services or views for the benefit of an advertiser, whether or not using third parties.
Medicinal Products by presentation
In the landmark ECJ case Van Bennekom, the presentation criterion to qualify medicinal products was introduced. The case related to a Dutch national, who was caught with large quantities of vitamin preparations for medicinal purposes in pharmaceutical form, however without any required pharmaceutical authorisations. Van Bennekom did not deny the facts, but he alleged that he was not marketing medicinal products, but food products. The ECJ ruled that for the sake of consumer protection, the presentation criterion not only covers products having a genuine therapeutic or medical effect but also those regarding which consumers are entitled to expect they have such effect. In sum, the presentation criterium should be broadly interpreted on a case-by-case basis, taking into account all relevant factors. The concentration level of active ingredients forms only one of those factors.
Medicinal products by function
The ECJ Hecht-Pharma decision is still leading to set the parameters to decide if a product qualifies as a medicinal product by function. Hecht Pharma was marketing in Germany a fermented rice product in the form of capsules presented as being food supplements. Further marketing was prohibited, as the product contained significant levels of monalin k, which is an inhibitor of cholesterol synthesis. The product was considered as a medicinal product by function, for the marketing of which a market authorisation would be required. The ECJ ruled in this case that for the purposes of deciding if a product falls within the definition of medicinal product by function, the national courts must decide on a case-by-case basis, taking into account all characteristics of the product, such as its composition, its pharmacological properties and manner of use, the extent of its distribution, its familiarity to consumers and the risks, which its use may entail. As reported in a recent post, these criteria are still valid.
A recent Dutch decision on a licensing dispute entailed so-called functional foods. Although this notion does not have a legal definition under EU standards, it is usually understood as food having certain medicinal properties. The dispute divided Unilever and Ablynx, who both had obtained a license from the Brussels University (VUB) under certain antibody patents owned by VUB. Unilever’s licensed related to (roughly speaking) food products, whereas Ablynx’ license related to medicinal products. Under its license, Unilever developed so-called functional foods having certain beneficial effects against infections caused by the rotavirus. Ablynx claimed that Unilever had thus operated outside its licensed field and thereby acted unlawfully vis-à-vis Ablynx. The Hague Appeal Court endorsed Ablynx’ claims, on the assumption that Unilever’s license was clearly directed against non-pharmaceutical products. As such, it could target general health benefits (such as lowering cholesterol), but not specific pathogens.
What can you learn from the above? It is important to obtain pre-market clearance for the communication on health products. For this purpose, you can take guidance from the Advertising Code on Health Products (Code aanprijzing gezondheidsproducten), applicable to products having a pharmaceutical form and a health related primary function, however without being medicinal products. You could also request pre-market clearance from KOAG-KAG, whom actively evaluates claims on health products and provide endorsements. If and when you are confronted with enforcement measures by either the Dutch Health Care Inspectorate (Inspectie Gezondheidszorg or IGZ) or the Dutch Food Safety Authority (Nederlandse Voedsel en Waren Autoriteit or NVWA), first try to buy some time by claiming an extension for response. Subsequently, carefully consider if the claims made by the enforcement authorities are factually correct and legally enforceable. Whenever helpful or necessary, obtain professional support.
As observed in an earlier post, the boundaries between food products and medicinal products are sometimes blurred. However, the qualification of a product as either one or the other may have huge regulatory consequences. In recent litigation in several Dutch Courts the Hecht-Pharma decision from the EU Court of Justice (ECJ) was applied. This series of cases is of interest for food business operators, as it provides a clear message regarding enforcement measures directed against borderline products. The national health authorities should strike a fair balance between the free movement of goods and the optimal protection of public health. Whereas enforcement policies re. borderline products constituting a threat to public health may be justified, this does not entail that each and every food product containing a substance with a physiological effect automatically qualifies as a medicinal product by function.
The facts of the case Hecht-Pharma related to a food supplement with fermented rice that Hecht-Pharma had been marketing in Germany under the name “Red Rice”. The recommendations for use read “as food supplement, 1 capsule, 1 – 3 times a day”. The German authorities had qualified this product as a medicinal product by function, but Hecht-Pharma did not agree. It argued that having regard to the recommended dose, the product at stake could not exert a pharmacological action.
Medicinal product by function
In its request for a preliminary ruling, the Federal Administrative Court aimed to clarify if, after a change of the Medicinal Products Directive, criteria previously developed to establish if a product qualified as a medicinal product by function, still applied. Qualification as a product as a medicinal product by function implies that it is aimed at a change in physiological functions by exerting a pharmacological, immunological or metabolic action. The ECJ confirmed in its Hecht-Pharma decision that previously developed criteria were still in place. As a result, the national authorities must decide on a case-by-case basis, taking into account all the characteristics of the product at stake, in particular its composition and pharmacological properties, the manner in which it is used, the extent of its distribution, its familiarity to consumers and the risks which its use may entail when they decide if a product qualifies as a medicinal product by function. Clearly, a product cannot be regarded as such, when it is incapable of appreciably restoring, correcting or modifying physiological functions in human beings.
The Dutch Court cases related to melatonin-based products, marketed by a number of companies represented by the Dutch foods supplements association NPN (Natuur- en Gezondheidsproducten Nederland). During the period between 2011 and 2014, The Dutch Health Inspectorate (IGZ) and the Dutch Food Safety Authority (NVWA) on the one hand and NPN on the other hand, corresponded on the topic of melatonin-based products. The Dutch authorities thereby took the view that they considered products containing 0,3 mg melatonin or more to be a medicinal product by function. They based their view on literature studies, from which it would follow that a single oral dose of 0,3 mg melatonin produced a pharmacological effect on humans. In view of their public role of safeguarding public health, the authorities intended to launch enforcement measures regarding products containing more than 0,3 mg melatonin, unless the manufacturer at stake had applied for an authorization to market these products as medicinal products.
Enforcement measures and subsequent summary proceedings
Early 2015, IGZ sent a letter to all Dutch manufacturers of melatonin-based products informing that they would require a market authorization for continued marketing of products containing 0.3 mg melatonin or more. Each such manufacturer should inform the authorities prior to 15 March 2015 for which melatonin-based products it would or it had already applied for such authorization, failing which enforcement measures could follow. NGN subsequently initiated summary relief proceedings, claiming inter alia that IGZ should refrain from enforcement measures, unless it had demonstrated with respect to each and every melatonin-based product that it qualified as a medicinal product according to applicable legal criteria as validated in case law. In these proceedings, NPN claimed that IGZ had not sufficiently demonstrated, based on scientific evidence, that products containing 0,3 mg melatonin or more could change physiological functions in the human body, for instance by a pharmacological effect. Furthermore NGN argued that IGZ had neglected to apply the criteria developed in Hecht-Pharma, according to which IGZ should have established with respect to each melatonin-based product that it qualified as a medicinal product, thereby taking into account all relevant circumstances. According to NPN, these products were food supplements, not medicinal products.
Evaluation by the Court in summary proceedings
Based on a very broad interpretation of the definition of medicinal product, as contained in article 1.2 of the Medicinal Products Directive, NGN’s claim was dismissed. According to the Court, assessment of each individual product could be done by the Dutch Medicines Evaluation Board or by EMA, upon filing of an application for marketing authorization. It was not necessary for IGZ to proceed to this evaluation at an earlier stage, as the chances that any deviations from the general conclusion would be found, were considered very small. The Court did consider however that IGZ’s communication and application of enforcement measures had not been unambiguous. Even if the manufacturers of the melatonin-based products followed the request to indicate by 15 March 2015 for which products they filed an application for marketing authorization, it would not be clear by when they would know if IGZ – pending such application – would refrain from enforcement measures. This created uncertainty in the market and was considered unlawful vis-à-vis NGN. The Court therefore ordered IGZ to set a term after 15 March 2015 during which the products for which a market authorization had been requested would be tolerated.
Decision reversed on appeal in summary proceedings
On appeal, the discussion was focused on the correct application of Hecht-Pharma. Contrary to the Court in first instance, the Appeal Court held that a public health authority announcing enforcement measures should at that very moment motivate why a product containing > 0,3 mg melatonin qualifies as a medicinal product. A different approach could create unjust market restrictions, for instance regarding products that upon application were not considered medicinal products. Moreover, the requirement to file a market authorization for each and any melatonin-based product containing > 0,3 mg melatonin is not just a formality, but would oblige manufacturers of this type of products to make an important investment in time and resources. Taking into account there were no acute health issues for the continued marketing of melatonin-based products, at least not for those containing a maximum up to 5 mg melatonin, the Appeal Court ordered that public health authorities should apply all criteria developed in Hecht-Pharma when considering enforcement measures against borderline products.
Confirmation in proceedings on the merits
This summer, the District Court of The Hague confirmed in a decision on the merits the appeal decision in summary proceedings discussed above. In short, this Court held that the unconditional qualification of a group of products as medicinal products, without any individual evaluation taking place, was not in line with EU case law. The Court in particular referred to paragraph 68 of the conclusion of the Advocate General. The Advocate General stated, inter alia, that the insidious extension of the scope of the Medicinal Product Directive by including products that do not belong there, would harm the free movement of goods. Therefore, until an individual assessment of a borderline product based on the Hecht-Pharma criteria has taken place, the public health authorities are not allowed to take any enforcement measures. No appeal was filed by IGZ against the present decision of The Hague District Court, but we were informed that where necessary, IGZ will proceed to enforcement in individual cases.
If and when your company receives a warning letter from IGZ announcing enforcement measures because of its borderline status, please bear in mind the following. Before considering any change in the product like the lowering of its active substance or even its withdrawal from the market, the public authorities should have unconditionally qualified the product at stake as a medicinal product. If and when this situation is not clear, make sure to obtain professional advice to properly deal with the health authorities.
Algae are in the spotlight as a sustainable source of protein, fibres and fatty acids. A form of sustainability is found in organic production. Besides sustainable, consumers perceive organic products as healthy and safe. Therefore producers of microalgae would like to use the organic logo. We previously reported on this topic in an earlier post this year. This post reports what is new in the regulatory framework. It furthermore elaborates on the legal and practical obstacles that algae producers currently encounter with respect to the use of the organic logo, as regulated here, and it explores potential solutions.
Various species of algae
The term “algae” covers both macro- and microalgae. Macroalgae – popularly called seaweed – can be seen with the naked eye. Examples include nori (sushi sheets), sea lettuce and kelp. Microalgae are single-celled organisms up to 50 micrometres in size, and thus not or hardly visible to the naked eye. There are many different species of microalgae, of which Chlorella and Spirulina are the best known. Both species have a history of safe use as application in food for human consumption. This means that the Novel Food legislation does not preclude the use of these algae in foodstuffs.
For a general description of the content of the EU Organic Regulation, we refer to our previous post. In essence, it comprises an overall system from farm to fork for the production of foodstuffs including micro and macroalgae. Furthermore, it provides for the possibility that so-called compliant products imported into the EU from recognized countries may be marketed as organic when certain conditions are met. The bottleneck so far was that the EU Organic Regulation did not provide for specific rules for the production of microalgae. This situation was partly remedied by the so-called Interpretative Note that the Commission published in July 2015. This document accepted the application of private standards recognized or accepted by the Member States, provided that they did not impose additional measures upon products originating from other Member States. Furthermore, it was established that until the moment that detailed production rules for micro algae would be determined, the production of microalgae must comply with the rules applicable to the production of either plants or seaweed. As a consequence, there was no consensus about the exact production standards for organic labelling of microalgae produced in Europe. At the same time it was – and is – possible for organically produced microalgae in third countries to be imported as such in the EU. Because of this situation European microalgae products are one-nil down.
In April this year, the Commission adopted a new Regulation changing the executive provisions of the EU Organic Regulation. In this 2016 Regulation, the Commission stipulates that to date no detailed production rules have been defined for microalgae used as food. Because of this it is still unclear what production rules govern the cultivation of microalgae. Therefore it should be clarified that detailed production rules that apply to the production of seaweed also apply to the production of microalgae for use as foodstuff. This clarification has been obtained by extending the production rules for seaweed applicable to feed, based on an amendment of the executive provisions of the EU Organic Regulation, also to food. The 2016 Regulation will enter into force on May 7, 2017.
Are thus all obstacles removed to organic certification of microalgae produced in the EU? Unfortunately not, because microalgae cannot be compared with seaweed just like that; as seaweed is a macroalgae. Although there are similarities between growing micro and macro algae, the harvest thereof is different. As to the similarities: both macro and micro algae need dissolved minerals and CO2 to grow since they do not break down manure automatically. Therefore, fertilizer and manure derivative products are usually added to the water in order to make the minerals contained in the fertilizers bioavailable to the algae. However, the addition of fertilizer or manure derivative products to an algae culture results into the harmful organisms present therein, such as toxins and heavy metals, to mix with the algae. Products made from algae to which manure or manure derivatives solutions are added, may therefore constitute a very high food safety risk. As to the differences between macro and micro algae: in the harvest of seaweed only the macro algae are harvested. The organisms and bacteria present in the water remain there and the product can be cleaned from harmful substances. However, this is not possible with the harvest of microalgae because of their small diameter. As a result, the bacteria, fungi and other organisms present in the culture are harvested as well and partly end up in the final product. The food safety of such products is questionable.
Risks of open cultivation systems
The vast majority of micro-algae are being cultivated in open ponds. These systems are afflicted by external influences. For that reason, a pond is continuously contaminated with undefined organisms such as bacteria, fungi, aquatic insects, toxins and even faeces. A method to inhibit this unwanted growth is the use of high concentrations of iodine. Algae products from such systems often contain very high concentrations of iodine and they therefore constitute a potential health risk. Nevertheless, third countries other than recognized countries do certify these products as being organic. As a matter of fact, they are marketed outside the system of similar products and recognized countries. This forms a troublesome form of competition for micro algae produced in the EU.
Advantages of closed systems
In closed systems, there are hardly any external influences. In these systems, the entire process of cultivation up to and including harvest can be closely monitored. In the unfortunate situation that any contamination occurs, this can promptly be detected and appropriately responded to. This way of cultivation of algae excludes the risk of unwanted organisms in the final product. However, in order to be able to grow algae under these conditions, the minerals required for the start of growth of the algae have to be added in a different way than in the open nature. Production of microalgae in closed systems therefore usually takes place by the addition of dissolved minerals.
Addition of minerals hinders organic certification
In organic production only a limited number of permitted minerals can be used. When an algae producer uses minerals that are not on the list of permitted substances, he cannot certify his products as being organically grown for the time being. From that perspective, it is important to mention that for some minerals, such as nitrogen and phosphate, there are no suitable natural alternatives or sources available. Mineral salts extracted from mines for instance are not considered safe for use in food. Therefore, currently isolated variants, of which the food safety is guaranteed, are used. Even if an algae producer could apply for admission of these minerals on the list, this has a downside. Normally, these minerals form an integral part of a specific production process containing proprietary information that cannot be disclosed by an algae producer just like that. When filing a request for authorization of minerals in organic production, the probability is low that confidential elements of the relevant production processes remain confidential in such an application.
We see two possible solutions to the problems identified above. Firstly, we expect that when the confidentiality of so-called proprietary data in an application for authorization of certain minerals in organic production could be ascertained for a minimum period, this would give a big boost to the organic cultivation of microalgae. Such regimes also exist for dossiers to be filed for the authorization of Novel Foods and of health claims, so this is not uncommon in food law. Secondly, a so-called grace period for substances currently used in closed culture systems could provide a solution. This grace period would need to apply until there is an acceptable functional alternative available for the envisaged substances in terms of quality, quantity and price. In both cases, of course, food safety is paramount. This means that the added minerals should be proven to be food-safe. Application of the proposed solutions would enable EU producers of microalgae the opportunity to use the EU organic logo for food-safe algae products. This would be a win-win for consumers and producers.
This post is based on a Dutch article that was co-written by the Dutch algae manufacturer Nutress, belonging to the Phycom group. It was published in the September 2016 issue of VMT, a Dutch magazine for the food business. The picture was kindly provided by Nutress, who owns the copyright thereof.