How are ‘better for you’ and other health claims regulated?

We’ve all seen the term ‘better for you’ attached to ostensibly healthy versions of less healthy – and often unhealthy - products.

Intuitively, we know what the term means. But how can it be used? What does regulation have to say about it?

Is ‘better for you’ a regulated term? ​

The term ‘better for you’ is, according to Katia Merten-Lentz, partner at the law firm Food Law Science and Partners, regulated, as it is a general health claim.

Health claims in the EU are regulated, she told us, by Regulation 1924/2006​, Article 2(2)(1) which states that ‘claim’ means “any message or representation...which states, suggests or implies that a food has particular characteristics.” 

According to the legislation, a nutrition claim means “any claim which states, suggests or implies that a food has particular beneficial nutritional properties” and a health claim “means any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health”.

In order to make a broad claim, such as ‘better for you’, the claim must be backed up by a more specific health claim.

“The term ‘better for you’, although generic, implies a relationship between the food and health, either suggesting a positive health effect or the absence of negative effects traditionally associated with snacking,” Merten-Lentz told us.

“According to Article 10 of Regulation 1924/2006, ‘reference to general, non-specific benefits of the nutrient or food for overall good health or health-related well-being may only be made if accompanied by a specific health claim’. Therefore, the claim ‘better for you’ can only be made if it is accompanied by an authorised health claim.”

It is, added Jessica Burt, food lawyer at Mills & Reeve, “important that even where there is a specific authorised health claim made that the general health claim may only be position ‘next to or immediately following’ the specific authorised health claim.”

Context, however, could change things. “It is possible for 'better for you' to be put in such a context that its meaning is moved away from the relationship with wellbeing and health and potentially related to another area i.e. price.”

What are the consequences of not using authorised health claims?​

Terms such as ‘better for you’ and ‘healthy’ must be accompanied by a specific health claim. There can be legal consequences if this does not happen.

For example, an advert by probiotic milk drinks brand Yakult was found by the UK’s Advertising Standards Authority (ASA) to have made a general health claim, through using imagery of a Yakult bottle skipping, tightrope walking, and pole vaulting, without backing it up with a specific health claim.

“The ASA held the references to sport, regular exercise and keeping a balanced life, both in the voice-over and the animation, that accompanied the claim about LcS (Yakult’s bacteria) reaching the gut alive and the closing statement, ‘Yakult. A bottle for you every day’, formed a general impression that there was a health advantage to drinking Yakult,” Burt told us.

“Further the ASA stated that even if the references to sport and the Olympics had not been as explicit as they were, ‘it did not remove the implication that there was a relationship between the product and health.’” The ASA, therefore, asked Yakult not to broadcast the advert again.

Which are specific health claims?​

Specific health claims are those that can be well defined, such as ‘high protein,’ ‘low fat’ and ‘sugar free’.

“Any reference to a relationship between food and health can be considered a health claim, in particular due to the broad scope of the claim’s definition,” Merten-Lentz told us.

“For example, the term ‘detox’ is considered a health claim because it refers to the medical process of detoxification, which aims at improving health through the elimination of toxins.”

What are the thresholds to health claims?

The EU also sets thresholds for some of its health claims. For example, "a statement claiming that the content has a reduced level of fat can only be made where the reduction is at least 30% compared to a similar product, or a statement claiming or suggesting that the content has a reduced level of salt can only be made where there is a difference of at least 25% between the content of the product for which the claim has been made and another similar item," Nicola Smith, partner in environmental, safety & health practice at law firm Squire Patton Boggs, told FoodNavigator.

"In terms of specific health claims that may potentially be relevant to ‘snacking’, by way of example, dried fruit might contain  vitamin A, vitamin C, calcium, iron, and potassium. Nuts may contain magnesium (particularly almonds, cashews, or peanuts). Fibre content may be relevant to cereal bars.

"To make a nutrition claim that a product is ‘high in’ any of these nutrients, the content must contain at least twice the value of the specified levels for the product to be a “source of” the vitamins or minerals (levels required for a product to be considered to be a source of the relevant nutrient are  governed by legislation and vary from nutrient to nutrient, typically at a level of 15% of the recommended allowance supplied by 100 grams of the product)."

Health claims that can result from this include 'magnesium contributes to a reduction in tiredness or fatigue' or 'rye contributes to normal bowel function'. 

There are also some health claims prohibited by the EU, including those suggesting the consumer puts themselves at risk by not ​consuming the food, those that reference weight loss, and those which reference individual doctors or professionals. 

When is something a health claim?

Importantly, according to Smith, these are only considered health claims when made in a commercial context. "If the primary objective is to induce the final consumer to consume a specific food or drink product, to the benefit of the manufacturer or retailer (either directly, such as financial benefits, or indirectly, such as reputational benefits), it will likely be commercial.

"How this plays out in practice can have some complexities. For example, generally, a newspaper article will not be covered by the EU NHCR 2006. However, government guidance provides that there might possibly be circumstances when a newspaper 'article' could be deemed to be a 'commercial communication' and therefore, subject to the Regulation, where it is aimed at the final consumer of a product (as a consumer of that product), written as part of a promotional campaign by a food business representative and for commercial rather than scientific or informative purposes."

What other claims are regulated?

There are, however, some claims that do not relate to health, and come under different parameters. For example, terms that “imply the natural characteristic of a product, more often related with some environmental aspects.

“For instance, terms such as ‘100% natural’, or ‘vegan’ are also regulated and their use is often conditional on compliance with certain production criteria. In addition, ‘free from’ claims, like ‘GMO-free’, or ‘gluten/allergen free’ cannot be used freely either," Merten-Lentz told us.

“While the term ‘allergen-free’ may be used for foods that do not contain the 14 allergens whose presence must be declared on the label, claims such as ‘GMO-free’ or ‘gluten-free’ must meet specific requirements laid down by European and national legislations.”