Some EU states dispute EFSA's approved health claims

After all the hubbub, EFSA finally releases a list of approved claims and now some are worried that member states will bar the way.

Will some European Union member countries refuse to allow the use of health claims that have been approved under the EU’s Nutrition & Health Claims Regulation? It sounds counterintuitive to the purpose of the regulation. But the specter of this worrying eventuality has nonetheless been raised by Europe’s trade body for the food manufacturing industry, FoodDrinkEurope.

The European Commission recently circulated for consultation a draft list of generic structure-function health claims that have been approved by the European Food Safety Authority and which, once adopted into law, will be available for any company to use in the EU marketplace.

But in an alarming statement FoodDrinkEurope said it was “concerned that some member states are now considering excluding several generic health claims despite having received a positive scientific opinion from EFSA.” It added, “Food manufacturers believe that scientifically substantiated claims currently under discussion deserve their place in the list of permitted claims.”

Asked to specify which claims it was referring to, FoodDrinkEurope said, “There are some which seem more likely to come under scrutiny than others, for example fats and ‘supply of metabolic energy’ or haem iron and ‘improvement in contribution to iron intake due to better availability’.” However, it is believed there could be many more claims facing opposition from individual member states.

Two claims in question

There are two main issues fueling this concern. One is that upper intake limits for a range of nutrients vary across the EU. This means it is possible the quantity of a substance specified in an approved claim to obtain a beneficial effect could in some cases be higher than a country currently allows in a product on health and safety grounds. The other is that in some member states certain functional ingredients are considered suitable only for medicinal products, not for foods and beverages. In both cases, manufacturers are worried some countries may seek to bar claims that fall foul of such national restrictions.

But Owen Warnock, partner at UK-based legal firm Eversheds, said the European Commission was likely to come down hard on any member state that attempted to block the sale of products containing functional ingredients subject to approved health claims.

“The Commission would normally be quite active in intervening,” he said. “They don’t like member states making their own provisions that are anti-free market. Sometimes, in the food context, member states try to rely upon the exception of protection of the health of the public. But in a situation where EFSA has done an assessment and says this is safe and accurate then it’s very difficult to argue protection of public health. I think the European Commission will try to tackle those kinds of issues because, if they don’t, then they undermine the whole concept and rationale behind having the regulation in the first place.”

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