Need for legal certainty

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Related tags: Health claims regulation, Flavor

The essential criteria for good legislation, that it must be clear and easy to understand, and uniformly interpreted and enforced, are ignored at our...

The essential criteria for good legislation, that it must be clear and easy to understand, and uniformly interpreted and enforced, are ignored at our peril. However, in the drafting of legislation or the assessment of existing structures, the golden rule of 'if it ain't broke, don't fix it' is often forgotten.

That is not to say that improvements cannot often be made - but change for change's sake may result in unexpected and potentially expensive mistakes. Increasingly, too, as legislation seems to be enforced by a plethora of bodies, critical aspects risk becoming more open to subjective interpretation.

Examples can be seen in several regulatory developments under discussion.

Proposed revisions to EU food additive legislation seek to recast authorisations into a restructured annex. This exercise is said to be purely mechanical but as individual food and drink products become increasingly complex, so does any attempt to put them in distinct categories.

Issues identified 15 years ago (and largely resolved) are being re-tabled but examples indicate that the intention will become more than a straightforward and unambiguous transfer. Is yoghurt a sub-category of milk and milk products or is it a type of dessert meriting its own category? But many people consume yoghurt for breakfast and do not consider it a dessert - is it therefore a breakfast food? How many categories will be needed to accommodate traditional, natural yoghurts, fruit-flavoured varieties with or without fruit pieces, with or without starch, or products sold with separate sections or distinct layers? Will distinctions be drawn between traditional and novel, bioactive cultures? Deep divisions also exist in opinions on heat treatment and dried or freeze-dried products.

The prospect of a structure of products and categories bearing more than a passing resemblance to the Common Customs Tariff would be difficult for major companies and a nightmare for small and medium-sized firms and enforcement. But, unless a sensible framework emerges, one can only imagine the problems that will arise with cross-border trade and imported products.

The old chestnut of 'naturalness' has again reared its ugly head, particularly in respect of flavourings and colours. There is pressure from some quarters for 'natural' flavourings to be 100% derived from the named source; some seek to maintain a 90:10 ratio, others suggest 98:2. A further suggestion is that the minor flavour component should be derived from a natural source other than the principal named flavour. One has to wonder what consumers expect.

Historic discussions have re-surfaced on the legal status of highly coloured foods, often used as typical ingredients in traditional products, and the use of preparations or extracts of these, ranging from whole, dried powders through highly-coloured, selectively-extracted materials to pure colouring chemical components.

At what point does the use of the food or its derivatives become colouring under the law? Does the use of these ingredients affect consumer perception of naturalness where the colouring ingredient might not generally be expected in particular foods? Turmeric in banana milk drinks, for example.

The potential problem of leaving critical concepts to subjective interpretations from disparate bodies and the grey area between certain foods and medicines was again highlighted in a recent UK Advertising Standards Authority ruling. The details behind that case will be more complex than can be gleaned from the ruling (not least because the defendant admitted he had no scientific evidence to support his claims) but two principles stand out. The ruling was triggered by a single complaint - was this one person a 'typical consumer' - as defined by the Nutrition and Health Claims Regulation? The advertisement made no medical claim but referred to potential benefits for health and conditions such as tiredness, laziness, impotence, childlessness and depression. The ASA appeared not to accept that these are not specific diseases but regarded references to them as sufficient to regard the product's claims as medicinal.

Reputable businesses need legal certainty. When the Nutrition and Health Claims Regulation comes into effect, there must be one single body that determines the rules. The Regulation applies to implied claims, by definition a highly subjective assessment. As any implication that a product can treat, cure or prevent a disease will remain prohibited, businesses operating at the cutting edge of nutriceutical marketing need clarity on how the concept of implication will be consistently enforced - especially in the absence of clear distinctions between 'disease' and 'conditions' under the new legislation.

Neville Craddock​ is a food law and safety consultant with extensive industry experience in the development and application of food law.

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