Expert View

EU nutrition claims under the microscope

By Katia Merten-Lentz and Manon Ombredane, legal experts with international law firm Keller and Heckman

- Last updated on GMT

 ©GettyImages/cyano66
©GettyImages/cyano66

Related tags: General food law

Nowadays the list of ingredients on food labels tends to be shorter and the names simpler. But, putting aside this ‘clean label’ trend, does the average consumer still notice the claims appearing on the labels of daily food? Katia Merten-Lentz and Manon Ombredane, legal experts with international law firm Keller and Heckman, weigh in.

In the 2000s there was an urgent need to regulate the market of those claims, as a result of the multiplication of vague and sometimes misleading allegations such as "50% fat-free". Therefore, the European Commission decided to introduce binding conditions to use claims in relation to the energy, nutrients or other substances contained in the food.

In accordance with the Regulation (EC) n°1924/2006 on Nutrition and Health Claims​ made on foods “nutrition claims” are defined as any message or representation including pictorial, graphic or symbolic representation, not mandatory under EU or national law, which states, suggests or implies that a food has particular beneficial nutritional properties. These benefits can be due to the energy the food provides - or not – or provides at a reduced or increased rate and/or the nutrients and other substances the food contains – or not – or contains in reduced or increased proportions.

Only authorized nutrition claims listed in the Annex of the NHC Regulation, or any claim likely to have the same meaning for the consumer, can be used. Accordingly, claims such as “energy-free”, “low sugars” or “contain Vitamin D” must comply with the specific conditions set-out in the Annex of the Regulation.

Only the European Commission may amend the list of approved nutrition claims. This differs from health claims, for which applicants can submit a dossier to request an update of the Community list. In addition, nutrition claims must comply with the general requirements such as not being false, ambiguous or misleading. For instance, if a claim is made in relation to nutrients or other substances, the said nutrient or other substance  must be  in a form that is available to be used by the body.

Since the NHC Regulation is more than ten years old, it is surprising that there are few unresolved questions left regarding nutrition claims and the pertaining conditions to used them. However, as recently shown with the apparition of the ‘Nutri-Score’, this is not the case.  

Does the regulation cover Nutri-Score?

In 2017 France introduced Nutri-Score, an front of pack nutritional labelling scheme, and notified it  to the European Commission. While some Member States followedsuit, other argued Nutri-Scoremay fall within the scope of the NHC Regulation.

This seems to be the position of the European Commission, which recently explained that “when the Nutri-Score logo attributes a positive message (i.e. green colour — light green or dark green), it also fulfils the legal definition of a ‘nutrition claim’ as it provides information on the beneficial nutritional quality of a food as defined in Regulation (EC) No 1924/2006​.​” 

The long-awaited report on the ‘front-of-pack’ labelling update​ may provide further insight regarding the articulation of Nutri-Score with the NHC Regulation as well as information on the European Commission next move.

No added sugar... but what about sweeteners? 

Another hot topic are the discussions surrounding the nutrition claim “with no added sugar”.  Under the NHC Regulation such claim:“[may] only be made where the product does not contain any added mono- or disaccharides or any other food used for its sweetening properties. If sugars are naturally present in the food, the following indication should also appear on the label: ‘CONTAINS NATURALLY OCCURRING SUGARS’​.”

One of the key conditions to use the claim is that no “other food used for its sweetening properties” ​should be used. But, in this respect, not all Member States seem to have the same interpretation.

In Ireland or Finland, the interpretation of the authorities is that: the use of a sweetener does not prevent the use of the nutrition claim "no added sugar" as long as the product and the information provided on it are otherwise in compliance with the Regulation​”.

However, Belgium and France have a much stricter approach, both stating that the conditions of use of the claim ‘with no added sugars' specify that this claim may not be used for products containing 'foods used for their sweetening properties'. According to the definition of Regulation (EU) No 178/2002, sweeteners are considered as "foodstuffs". Therefore, since sweeteners are foods used for their sweetening properties, the claim ‘with no added sugars' cannot be used for products containing sweeteners​.”

To date, the matter has not been referred to the Court of Justice for a decision and it is not certain that the European Commission will act promptly. Therefore, the wishful thinking of the Commissioner-delegate Stella Kyriakides to see a “common approach across Member States” ​may soon be put to the test.

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