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EU Health Claims Regulation and the Marketing of Functional Foods: A Regulatory Void?1

Published online by Cambridge University Press:  20 January 2017

Herman Lelieveldt  and
Cris Boonen
Herman Lelieveldt
Affiliation:
University College Roosevelt Academy, Department of Social Sciences
Cris Boonen
Affiliation:
Leiden University, Institute of Political Science
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Abstract

This report evaluates the current regulatory regime for health claims in the EU on the basis of a case study of the marketing of Optimel Control, a yoghurt drink which was marketed in several EU member states as a functional food aimed at suppressing appetite and maintaining weight control. Our case study of the marketing of Optimel Control in the Netherlands reveals that the use of non-textual marketing claims was much more important than the use of textual health claims. Because the current EU regulatory regime emphasizes the evaluation of the wording of health claims, but lacks an evaluation of non-textual claims we conclude that there is a regulatory void that producers can use to market their products in ways that suggest more health effects than scientifi cally warranted. As a result the protective effect of the current EU regulatory regime on health claims is less strong than what legislators may have intended. While it might seem most logical to simply expand EFSA's remit by also letting it look at non-textual claims, we argue that a better solution to close this gap is through a stricter monitoring of unfair commercial practices at national level.

Type
Reports
Information
European Journal of Risk Regulation , Volume 3 , Issue 4 , December 2012 , pp. 577 - 580
Copyright
Copyright © Cambridge University Press 2012

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Footnotes

1

We thank Ger Rijkers for useful comments on an earlier version of this report.

References

2 EFSA Panel on Dietetic Products, Nutrition and Allergies. “Scientifi c Opinion on the substantiation of health claims related to formulated palm and oat oil emulsion and contribution to the maintenance or achievement of a normal body weight (ID 577) and maintenance of body weight after weight loss (ID 1553) pursuant to Article 13(1) of Regulation (EC) No 1924/2006” 9 (6) EFSA Journal (2011) p. 2252.

3 EVMI : “Optimel Control enige functional food in Top 20”. Available on the Internet at http://evmi.nl/marketing-sales/optimel-control-enige-functional-food-in-top-20/ (last accessed on 31 October 2012).

4 EVMI: “Fabuless (Optimel Control)”. Available on the Internet at <http://evmi.nl/artikelen/fabuless-optimel-control/> (last accessed on 31 October 2012

5 See Herman Lelieveldt and Cris Boonen “The Effectiveness of the Legal Framework on Nutritional Health Claims in the Netherlands. A Case Study of Optimel Control”, in Herman Lelieveldt and Cris Boonen (eds.) From Brussels to Mussels. A Comparative Perspective on Food and Public Policy (Middelburg, Roosevelt Academy, 2007), p.40–75. Available on the Internet at <http://www.roac.nl/roac/frombrusselstomussels.phtml> (last accessed on 31 October 2012).

6 Scott, Linda M., (1994). “Images in Advertising: The Need for a Theory of Visual Rhetoric” 21 (2) The Journal of Consumer Research (1994), pp. 252–273.CrossRefGoogle Scholar

7 Regulation (EC) No 1924/2006 of the European Parliament and of the Council on nutrition and health claims made on foods, OJ 2006 L 404/9.

8 EFSA Panel on Dietetic Products, Nutrition and Allergies. “Scientific Opinion on the substantiation of health claims related to formulated palm and oat oil emulsion and contribution to the maintenance or achievement of a normal body weight (ID 577) and maintenance of body weight after weight loss (ID 1553) pursuant to Article 13(1) of Regulation (EC) No 1924/2006” 9 (6) EFSA Journal (2011) Appendix A.

9 Foodwatch, “Actimel, de feiten”, Available on the Internet at: http://foodwatch.nl/foodwatch-nl/content/e32905/e34582/e35823/actimel_defeiten_windei_20100521_nl.pdf (last accessed on 31 October 2012). Consumer watchdog groups such as Foodwatch (www. foodwatch.nl and www.foodwatch.de) use naming and shaming to alert consumers to misleading advertising and put pressure on food producers to change labels and claims. The quote comes from a report on Danone Actimel. The original quote reads “If Danone is not allowed anymore to say that a product is healthy, it is still able to suggest it is” and refers to the fact that Danone kept on using health claims on its product despite the judgment of EFSA on the lack of scientifi c substantiation of the Lactobacillus Casei bacteria. The website of Foodwatch contains numerous other examples of these practices.

10 E.g. Kozup, John C., Creyer, Elizabeth H., Scot Burton “Making Healthful Food Choices: The Infl uence of Health Claims and Nutrition Information on Consumers’ Evaluations of Packaged Food Products and Restaurant Menu Items” 67 (2) The Journal of Marketing (2003), pp.19–34.CrossRefGoogle Scholar

11 Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market, OJ 2005, L 149/22.