One of the currently discussed topics in the area of food law, which has recently been dealt with by the State Agricultural and Food Inspection Authority (hereinafter referred to as the “SFA“), is the issue of medical, health and nutrition claims in food labelling in the context of weight loss programmes and reduction diets, which may tend to mislead consumers.
In the following article, we would like to introduce you to some of the problematic aspects of the legal regulation of the use of medical, health and nutrition claims in food labelling and product advertising, as well as specific examples from practice.
The general rules and principles of food labelling set out in Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 April 2011 on the labelling of foodstuffs shall apply primarily to the making of medical, health and nutrition claims that indicate a link between a food and weight reduction or other similar effects. (hereinafter referred to as “Regulation 1169/2011“), in the first place, without exception, that food information must not be misleading, inaccurate or unclear and must not mislead the consumer as to its origin or properties or effects.
According to Article 7(3) of Regulation 1169/2011, food information shall not attribute to any food the property of preventing, treating or curing a human disease, nor refer to such properties, so-called “medical claims“. Medicinal claims are categorically prohibited for foods and it is always a matter of assessing the risk words comprehensively and in context.
In general terms, the following elements in particular must not appear in food labelling and advertising of food products:
- names of diseases according to the International Classification of Diseases (ICD) (e.g. cold, flu, diarrhoea, arthritis, obesity etc.);
- names of symptoms (e.g. pain, shortness of breath, dizziness, vomiting, fever etc.);
- words otherwise associated with diseases or health problems (e.g. cure/treat, acute, chronic, prevention etc.);
- graphic, pictorial or symbolic representation (e.g. a picture of a doctor without accompanying text, a picture showing inflammation of a joint etc.); or
- misleading product name (e.g. Anti-parasite, Cold Tea)
Health and nutrition claims
A nutrition claim is any claim that states, implies or suggests that a food has certain beneficial nutritional properties as a result of (i) the energy (caloric) value it provides, provides at a reduced or increased level or does not contain, or (ii) the nutrients and other substances it either contains, contains at a reduced or increased level or does not contain (e.g. “reduced sugar“ or “fat free“ or “light“).
A health claim is then a claim that states, implies or suggests a link between a food category, a food or one of its ingredients and health (e.g. “Glucomannan in a low-calorie diet contributes to weight loss“).
Unlike medical claims, which are absolutely prohibited from being used in food labelling under Regulation 1169/2011, nutrition and health claims are permitted in certain circumstances.
The legislative framework for the use of nutrition and health claims is primarily set out in Regulation (EC) 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods (“Regulation 1924/2006“).
Nutrition and health claims must follow the general principles set out in Regulation 1924/2006, in particular they must not be untrue, ambiguous or misleading, cast doubt on the safety or nutritional adequacy of other foods etc.
At the same time, they must be claims that are explicitly listed in the official lists established under Czech and European legislation, i.e. the list of nutrition claims and the list of approved health claims, while some verbal flexibility is generally allowed. When making these permitted claims in relation to food, the specific conditions imposed on the food, e.g. a certain number of KJ, amount of sugar, nutrients or other substances, must always be met.
Particularly problematic in the light of Regulation 1924/2006 may be the commonly used messages informing consumers about the weight loss effects of a food, which often conflict with the rules on the use of health claims set out in Articles 12 and 13 of Regulation 1924/2006, in particular the prohibition on any reference to the rate or amount of weight loss.
Differences in weight-loss programmes and reduction diets
When assessing health claims relating to weight-loss programmes and reduction diets, a distinction should be made between a promoted diet consisting exclusively of products or food products from only one brand, or a diet tailored to the consumer in the context of nutritional advice, even if from one particular company, but consisting of products from various different brands.
In the first case, for example, the claim „With [PRODUCT NAME] you will lose weight…“ would be considered a health claim in violation of Article 12(b) of Regulation 1924/2006 (see above) and therefore not permitted. Conversely, the claim „With [COMPANY NAME] you will lose weight…“ referring to the consultancy activities of a company that does not offer food products under its own brand would not be considered a health claim and therefore not affeceted by the prohibition above.
The use of medical, health or nutritional claims both in food labelling in general and within weight loss programmes is an issue that is governed by strict specific rules of Czech and European legislation.
At the same time, an important factor plays a role in SFA inspections, namely an assessment based on a comprehensive evaluation of the context of the use of the claim, which is why it is necessary to be particularly careful when formulating marketing and other descriptive and promotional texts, not only on the packaging of the product as such, but also in its presentation in the press, on the web or on social networks.
If you have any questions regarding the labelling and promotion of food, as well as other substantive issues related to food law, please do not hesitate to contact us.
Mgr. Tereza Dvořáková, attorney – firstname.lastname@example.org
Mgr. Jakub Málek, managing partner – email@example.com
22. 07. 2022