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Health claims rules now in ‘overkill’: law firm

By Gary Scattergood in Frankfurt , 14-Nov-2012

The European Food Safety Authority (EFSA) is in danger of “overkill” with its approach to Nutrition and Health Claims Regulations (NHCR), with the process fundamentally undermined by its refusal to tell food firms how it defines ‘health’.

Health claims 'overkill' is how one Germany lawyer described EFSA's policy

Health claims 'overkill' is how one Germany lawyer described EFSA's policy

That was the view of lawyer Christian Meier speaking at an NHCR seminar yesterday (Tuesday, November 13) at the Health Ingredients Europe conference in Frankfurt. He said the fact that there was a single law covering all Member States was a “good thing”. But the NHCR process was too costly, complicated and lacked precision, he added.

This was a situation that would not be improved until EFSA provided a definition for what it understood ‘health’ to mean, he said.

“Without knowing what they mean by health, how can a company say: ‘This product will improve health?”

Definition of health

“It is absolutely important that EFSA says what its definition of health is,” added Meier, from German firm Gornylaw.

The lack of a definition was not a challenge in “obvious cases” but caused a whole host of problems when making a claim about general, or non-specific benefits, about well-being.

The chair of EFSA’s health claims panel Professor Martin Ambroise acknowledged there were “grey boundaries” but said it was not the job of his panel to make the definition.

He also cautioned against adopting the only global, legal definition of health − devised by the World Health Organisation − because it had a very wide-ranging interpretation.

“It would be very difficult to do this because it would mean we should accept cosmetic claims and the like. I would be very reluctant to use it,” he said.

European Court of Justice

Meier also accused the European Court of Justice (ECJ) of failing to tackle the issue last month when making its first ever ruling on an NCHR case. This involved the digestion claims of a German wine company.

Its ruling that the wine firm’s statement was a health claim served only to broaden the possible interpretation, instead of narrowing it, he said. “The ECJ had the chance to give us a definition but for some reason it missed the chance, or refused to do it.”

At present, the EFSA regulation states a health claim is any statement that suggests or implies a relationship between a food, or one of its constituents.

So far, 241 claims have been accepted, with 1,719 refused. But Meier even questioned if these had a strong enough legal basis in statute.

“The regulation is not the law itself, but the interpretation of the law. From a legal point of view, there may be no sufficient legal basis.”

This in itself was evidence of “overkill”, he argued, along with the “cost, complications” and repeated need for firms to rephrase food claims to meet the regulations.

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