Date: May 20, 2016
Published May 20 2016 on www.eurofoodlaw.com
The EU’s strategy on nutrition is outdated and needs redirecting, as Katia Merten-Lentz, of international law firm Keller and Heckman, explains.
Almost 10 years have passed since the European Commission adopted its white paper on a Strategy on nutrition, overweight and obesity-related health issues.
Various fields of EU legislation, such as agricultural policy and, in particular, food law, were expected to form a valuable contribution to national health policies. For that reason, the Commission considered, among other initiatives, nutrient profiles for the use of claims and mandatory nutrition labelling.
Indeed, the establishment of nutrient profiles was mandated under the Nutrition and Health Claims Regulation.
Nutrient profiles aim to prevent consumers from being misled by inaccurate or confusing claims. But last month the Commission received the European Parliament’s backing to abandon the scheme, arguing that current mandatory nutrition information is sufficient.
Nutrition labelling is already widely applied and will become mandatory from 13 December 2016. That said, the ‘sufficiency’ of mandatory nutrition labelling can be questioned.
Does it adequately inform European citizens on the composition of the consumed foods?
Arguably, the mandatory nutrition information appears to be lacking crucial elements and impedes the adoption of national initiatives.
For instance, the possibility to display the amount of trans fats or added sugars has been ruled out in the corresponding Food Information to Consumers Regulation. (The Commission is currently considering policy options to address the consumption of trans fats in this report). Producers or retailers cannot provide this information on a voluntary basis. Individual member states cannot modify the disclosure of nutrition information.
The Food Information to Consumers Regulation only allows for additional forms of expression and presentation to facilitate consumers’ understanding of the given information.
Such additional indications, including front-of-pack schemes, may be developed insofar as they comply with the stringent requirements of the Regulation (See Article 35). For that reason, the UK traffic light labelling system has remained voluntary for producers and retailers, and the European reference intake values are used instead of guideline daily amounts.
But this did not prevent the Commission from investigating whether the initiative raised a de facto trade barrier. The investigation is still running but will not have priority as a result of the upcoming Brexit referendum on June23rd.
Meanwhile, the French authorities are considering creating their own traffic light labelling scheme. ANSES (the French Agency for Food Safety), however, doubts the feasibility of the proposed schemes since the mandatory nutrition information under EU law does not provide the necessary elements to properly apply them (see French language report on the traffic light scheme). The amounts of added sugar, essential for the implementation of the schemes, are not, and cannot, be indicated on pre-packed foods.
The absence of nutrient profiles and deficiencies in nutrition labelling show that European nutrition policy, contrary to what is claimed, is rather insufficient.
These shortcomings undermine the effectiveness of nutrition labelling and, additionally, the restrictions placed on national initiatives are contrary to the complementarity of the European nutrition policy as indicated in the 2008-strategy.
Considering these restrictions under harmonised legislation, EU food commissioner, Vytenis Andriukaitis, stressed that other policy options are available to national authorities to improve dietary quality in Europe, specifically mentioning taxation.
Earlier in March, the United Kingdom announced the introduction of a sugar tax on soft drinks. But it is hard to see how a unilateral tax measure would be considered not to hinder free movement of goods while voluntary labelling initiatives do.
Although no details are available yet, it is very likely the tax measure will be challenged under European free movement rules by various stakeholders for being discriminatory.
Accordingly, the EU strategy is outdated. The Commission should provide coordination and guidance on national strategies. That way, effective strategies can be implemented at the national level without constituting barriers to trade more than is necessary for the improvement of European citizens’ health.