Overview of a potential EU UPF definition
- The EU is still deciding whether to create a UPF definition
- Scientific advisors will inform Commission decisions after March 2027
- Potential criteria include additives, nutrients, processing levels and consumption
- Any binding EU rules would likely take years to develop
- Nova and US models may influence future EU definitions
Defining ultra-processed foods (UPFs) in regulation is not easy. Yet in some jurisdictions, such as the US, the development of such definitions is already underway.
On a state level, some plans have already been established. For example, California’s state-backed non-UPF certification, which contains a UPF definition, has been passed. This defines UPFs largely by the additives they contain. The certification is currently pending approval by state Governor Gavin Newsom. On a federal level, the US government is also pursuing a definition.
Back in Europe, not as much progress has been made. The European Union, far from developing such a definition, is still considering whether to draw one up.
While much remains uncertain at this stage, it is possible to make predictions on what a definition, should one be developed, could look like.
Towards a definition?
The EU is yet to explicitly commit to a definition. But it has began to lay the groundwork for one.
In July of this year, the EU published a scoping paper (preliminary document mapping research on a broad topic) entitled Scientific and Ethical Assessment of Ultra-processed Food Consumption and Recommendations for Related Policies in the EU.
The paper acknowledges the potential that health risks are linked to UPFs. With this in mind, it tasks the Group of Chief Scientific Advisors (GCSA) and the European Group on Ethics in Science and New Technologies (EGE) to understand the science around UPFs, the existing definitions and EU-wide UPF consumption.
Furthermore, they must ascertain what criteria and markers could be used to usefully assess the health effects of such foods. These must be specific enough both to allow consumers to seek healthier diets, and policymakers to implement health measures.
The scoping paper says that factors that should be taken into consideration should include nutrients, energy density, ingredients such as food additives, portion sizes, frequency of consumption, the degree and type of ultra-processing, and the role of individual foods in providing essential nutrients to help consumers meet dietary intake recommendations.
The question of whether to draw up a definition is presented to the GCSA, explains Bregt Raus, EU regulatory and intellectual property lawyer at law firm Altius. Part of the EU’s Scientific Advice Mechanism, they provide independent scientific advice and policy recommendations to the College of European Commissioners.
The advice of this group will be released in March 2027, and it is only then that the European Commission will decide what to do with it.
When could we see a definition?
If a UPF definition is produced, it will likely be many years down the line.
To give an idea of a timeframe between GCSA advice and legislation, says Altius’s Raus, their previous opinions on new genomic techniques were published in 2017 and 2018, only resulting in a legislative proposal in 2023.
Once the EU has this advice, there are many things it could do that don’t involve drawing up a definition, says Katia Merten-Lentz, partner at Food Law Science and Partners. The Commission could use it for dietary guidance, research or consumer information, all without proposing legislation.
If it does decide to regulate, the process would likely include policy development, consultation and an impact assessment, followed by a legislative proposal and negotiations within the European Parliament and Council.
Therefore, if binding rules are drawn up, stresses Merten-Lentz, the process could take years.
Whether there will actually be a definition in the first place is still not entirely certain, explains Christofer Eggers, partner at the law firm Squire Patton Boggs.
The discussion currently focuses on whether or not a definition that is scientifically based and precise enough to be used in legislation is even possible.
“There is no agreement in the scientific world” on what UPFs are, points out Eggers.
If previous precedent is anything to go by, the definition could be a long way off.
“It would be a rather big surprise if a UPF definition will be published within a year or two.”
What could a definition look like?
Of course, it is difficult at this stage to truly predict how a definition will look.
Nevertheless, there are some indications. “The mandate suggests it could combine the level of processing with factors such as additives, nutritional composition, energy density and portion size”, says Food Law Science and Partners’ Merten-Lentz. This would be closer to California’s definition than the Nova Classification, the most widely used academic definition.
EU law, Merten-Lentz points out, already defines ‘processed’ and ‘unprocessed’ food. Yet simply adding ‘ultra’ to this would not alone create a workable definition. The EU would need to define when processing becomes ultra-processing.
Furthermore, says Squire Patton Boggs’ Eggers, the EU has previously been unable to establish maximum levels of vitamins and minerals in food.
Any definition would likely play a part in regulation, according to Eggers. The form this would take could include restraints on advertising UPFs, or potentially warnings similar to those for used on dietary supplements, such as those not to exceed a daily limit or to keep out of the reach of young children.
The most likely form regulation would take would be on food information for consumers, suggests Merten-Lentz, which includes rules on labelling. It seems less likely that a UPF definition will be included in the regulation on health claims, she suggests.
What other definitions will be taken into account?
The Nova classification, which contains the most commonly used definition of UPFs, will likely have at least some influence on the EU’s own definition.
Yet the EU is unlikely to adopt it unchanged, stressed Merten-Lentz. It remains scientifically controversial and its categories may be difficult to apply consistently and from a regulatory standpoint. Instead, Nova may simply act as a starting point.
The EU will address the perception that Nova ”leads to inconsistent results and that some of the Nova assumptions are ideologically biased", says Eggers.
The definition included in California’s non-UPF seal is likely to be taken into consideration as well, in Merten-Lentz’s view. However, it will probably not be copied completely, and it is not mentioned in the scoping paper.
The likelihood is that it will be taken as a reference point, alongside Nova and the US’s emerging federal definition.
Any future UPF definition remains a topic of speculation. The EU has not even committed to producing one. Yet in the priorities it has laid out – additives, nutrients, processing levels and consumption patterns – it has provided a general direction that a definition may go in should one be developed.
The GCSA’s advice is due early next year. Beyond that, the next steps remain to be seen.
