Opinion of the European Economic and Social Committee on the ‘proposal for a Regulation of the European Parliament and of the Council on nutrition and health claims made on foods’ (COM(2003) 424 final – 2003/0165 (COD))
Date: 2004-02-26
Institutions: European Economic and Social Committee
Subjects: approximation of laws, consumer information, consumer protection, foodstuff, labelling

C 110/18

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Official Journal of the European Union

30.4.2004

Opinion of the European Economic and Social Committee on the ‘proposal for a Regulation of the
European Parliament and of the Council on nutrition and health claims made on foods’

(COM(2003) 424 final – 2003/0165 (COD))

(2004/C 110/05)

On 29 July 2003, the Council decided to consult the European Economic and Social Committee, under
Articles 95 and 251 of the Treaty establishing the European Community, on the above-mentioned
proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing
the Committee's work on this subject, adopted its opinion on 5 February 2004. The rapporteur was Mrs
Davison.

At its 406th plenary session of 25-26 February 2004 (meeting of 26 February), the European Economic
and Social Committee adopted the following opinion unanimously.

1. Introduction

1.1
The EESC welcomes in principle the Commission's
Regulation with its emphasis on nutrition and health. It comes
at a time when the WHO (Europe Region) has pointed out that
up to 20 %-30 % of adults are overweight and that poor diet
and lack of physical activity are also linked with cardiovascular
disease. Governments too are increasingly recognising that
there is a connection between the foods people eat and the
health and well-being they enjoy, as well as the consequences
of ill-health to national economies.

1.2
The proposal for a Regulation on nutrition and health
claims made on food also comes at a time when diet, dieting
and health awareness are receiving prominent news coverage,
with consumers needing accurate, substantiated information
more than ever before to enable them to make informed
choices and decisions. For the EESC, consumer information and
protection are of the highest importance.

In the light of this background, the Commission has
1.3
proposed in the first instance, as a supplement to Directive
2000/13/EEC (relating to the labelling, presentation and adver-
tising of
foodstuffs), this Regulation setting out criteria for
producers who wish voluntarily to make claims. In doing so,
its intention is to both create a level playing field in an area
where interpretation varies and to provide for non-biased infor-
mation to consumers, thereby overcoming some of the lack of
clarity in this regard caused by the present Advertising Direc-
tive.

provide more specific guidance concerning nutrition and
health claims. This has been proven necessary because of a
growing number of such claims, some of which are dubious
due to a lack of clear scientific evidence to support these
claims. Moreover, consumers are often confused by current
labelling (1).

2.2

The main objectives of this proposal are the following:

— to achieve a high level of consumer protection by providing
further voluntary information, beyond the mandatory infor-
mation foreseen by EU legislation;

— to improve the free movement of goods within the internal

market;

— to increase legal security for economic operators; and

— to ensure fair competition in the area of foods;

— to promote and protect innovation in the area of foods.

Article 3 of the proposed Regulation provides that the

2.3
use of nutrition and health claims shall not:

a) be false or misleading;

b) give rise to doubt about the safety and/or the nutritional

adequacy of other foods;

c) state or imply that a balanced and varied diet cannot

provide appropriate quantities of nutrients in general;

d) refer to changes in bodily functions in improper or alarming
through pictorial, graphic or

textually or

terms either
symbolic representations.

2. Summary of the proposal

2.1
Directive 2000/13/EC generally prohibits the use of
information that would mislead the purchaser or attribute
to food. The new regulation would
medicinal properties

2.4
Article 4 provides for a minimum nutritional profile
which foods must have in order to carry nutrition or health
claims — for example alcoholic drinks may not carry health
claims or nutritional claims except in cases where there is
reduced alcohol or energy content.

(1) See the Survey by the Consumers Association (UK) April 2000.

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2.5
Nutrition and health claims can only be made if science
can show a beneficial nutritional or physiological effect, as
established by generally accepted scientific data updated in line
with technological advances and where the impact is significant
and the claim is understandable by the consumer.

It must also go hand in hand with exercise. The EESC recog-
nises the challenge in reaching consumers with this essential
message of balance, moderation and avoidance of excess.

Health claims have to be accompanied by further infor-

2.6
mation, for example when referring to diet and lifestyle.

Claims about psychological or behavioural

2.7
functions
will not be permitted, nor on slimming or weight control nor
referring to health professionals or charities and it must not be
suggested that health could be affected by not consuming the
food. Reduction of disease risk claims must be authorised
through the European Food Safety Authority (EFSA) as long as
it is also made clear that diseases have multiple risk factors.

The Annex lists nutrition claims and conditions applying

2.8
to them.

3. General comments

3.1
The EESC welcomes the proposal for a European regula-
tory framework both in the interest of consumer protection
and of harmonisation in the internal market. It recognises the
need to address the issue of different national rules operating at
the moment through self-regulatory national codes of practice.
The new Regulation will provide the necessary legislative
instrument so that the direct effect of desired outcomes is guar-
anteed evenly across all Member States.

It

is possible, however,

3.2
imported products may
breach the Regulation in terms of both claims and labelling by
appearing only in non-European languages. There is concern
too over products obtained through the internet from non-EU
sources.

that

3.3
The EESC stresses the need for legislation to be propor-
tionate, predictable, properly enforced — and above all prac-
the provisions
tical, and expresses concern that some of
relating to the substantiation of claims may be unnecessarily
complex and even cumbersome. Workable procedures with
clear timetables that avoid unnecessary delays in the approval
process are needed. The EESC also questions whether the
operative burden on the EFSA will be excessive.

The EESC points out that legislation must go hand in
3.4
hand with life-long consumer education which includes the
acceptance of personal responsibility. At a time when obesity
in particular is rapidly increasing even in young children, the
importance of achieving a balanced diet must be emphasised
— yet without taking away enjoyment of good food and drink.

Nevertheless, it accepts the need for responsibility to be
3.5
taken — and coordinated wherever possible — by all interested
stakeholders: producers, distributors and retailers, enforcement
bodies such as trading standards, government departments,
relevant professional, social and consumer organisations. The
support of the mass media, is essential in providing ‘popular’
communication.

3.6
The EESC also stresses the need to encourage individual
Member States to develop consumer education programmes in
schools,
integrated into existing subjects such as Language,
Home Economics or Citizenship and starting with the youngest
children. Other groups such as older people, disabled groups
and ethnic minorities, also need particular help provided
through the support of local social organisations. Examples of
existing best practice could be collected and collated at a Euro-
pean level.

3.6.1
The EESC encourages the Commission to promote
campaigns on health and nutrition through its public health
programme.

The EESC would emphasise the value of an overall well-
3.7
balanced and moderated diet rather than too much designation
of foods as ‘good’ or ‘bad’. The Commission must be more
specific in its proposals in Article 4 on nutritional profiling so
that producers know exactly where they stand.

4. Specific comments

4.1
Article 1, Para 2. The EESC endorses the inclusion of
claims relating to mass catering in hospitals, restaurants and
schools in view of the large number of consumers involved,
many of them vulnerable. But it questions the practicality of
the proposal both in its implementation and enforcement.

4.1.1
Para 4. The EESC points to the special importance of
foods for the particular nutritional needs of vulnerable cate-
gories of consumers.

4.2
Article 2, Definitions, para 1. The EESC questions
whether brand names may be developed to express particular
nutritional or medical characteristics in order to avoid justifying
implicit claims.

4.2.1
Para 2. Sodium is included among the nutrients listed.
References, to both salt and sodium are confusing and must be
clarified.

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4.2.2
Para 3. The definition supplied is vague and difficult
to pin down. In order to put this right, it should specify that is
referring to any substance that has a nutritional or physiolo-
gical effect, including probiotic factors and enzymes contained
in many foods such as yoghurt, honey, etc.‘

ard brand‘). Moreover, the proposal should make it clear that
producers do not need to list things which are not there (e.g.
’This product does not contain Vitamin A or C.‘)

4.2.3
Para 8. The EESC notes that the Commission takes its
definition of ’average consumer‘ from that developed by the
European Court of Justice. It remains concerned that there will
be many semi-literate/semi-numerate consumers with limited
education and knowledge about food who are not capable of
understanding either the implications of certain claims, espe-
cially those including percentages, or their supportive labelling.

4.6
Chapter 4, Article 10. The EESC welcomes the specific
conditions that health claims must meet on the grounds that
greater care is needed with products where there is the possibi-
lity of a higher degree of emotion involved in choice and
greater ignorance of scientific terms. It urges the Commission
to ensure that claims relate to the actual product promoted,
and not to another product used with it — e.g. some breakfast
cereals claim to contribute towards maintaining ’healthy bones‘,
whereas it is the milk used which provides the calcium content.

Article 4. Para 1. The EESC appreciates the fact that this
4.3
Article on nutritional profiling did not feature in the original
draft of the proposal. Though it is endorsed by the WHO and
Member States, the food industry regards it as impractical and
unnecessarily restrictive, believing that consumers should them-
selves bear responsibility for their own choices of overall diet.
Nevertheless, the EESC accepts that consumers are so highly
influenced by claims for the particular and substantiated bene-
fits of foods, which are, for example, low in fat, sugar or salt
that they may ignore the possibility that such foods may also
be high in certain other undesirable nutrients. (e.g. ice cream
dessert which is bought because it is 98 % fat-free and yet
contains enormous amounts of sugar unrecognised by consu-
mers.). The Commission's proposal indicates that the emphasis
on one substantiated ’virtue‘ of a product, omitting its other
’vices‘, may be true and accurate but nevertheless misleading to
consumers.

4.3.1
The EESC therefore urges the Commission to be much
clearer in its proposals for nutritional profiling, and as an
interim compromise to place limits on the bearing of health
claims on food products with ingredients where there is a
pattern of over consumption and an undesirable impact on
health.

4.3.2
The EESC recognises that there will be grey areas with
some products being borderline (such as fruit juices and full-
cream milk) which will require special appraisal by the EFSA.

4.7
Article 11, Para 1 d). The EESC recognises the role of
certain professional organisations and charities in promoting a
healthier diet as a means of preventing specific diseases. Their
contribution in providing specialist advice is welcomed. Never-
theless, their possible dependence on financial support or spon-
sorship should be monitored as they may provide endorse-
ments for foods which are simply promotional deals not based
on any set standards or open to other competing brands. More-
over, clear criteria must be developed concerning the accept-
ability of sponsorship.

4.8
The EESC asks the question whether some claims for
general health or well-being (for example ’no colourings‘) and
some slimming claims could be acceptable if they comply with
the conditions set down.

4.9
Article 14, Para 1.c). Here and elsewhere there are refer-
ences to availability of documentation to the public. The EESC
approves such publicity but hopes that efforts will be made to
reach the public at large (see also Article 15 point 6, and
Article 17 point 2).

Article 6 Para 3. The role of ’competent authorities‘, also
4.4
referred to in Article 24, should be amplified, and their rela-
tionship with the EFSA defined.

4.5
Chapter 3. The EESC endorses the need for comparisons
to be made, but points out that the print size in which an
actual comparison is made should be legible.
(e.g. the label
’30 % less fat‘ and in minute letters ’compared with the stand-

4.9.1
Para 2. The EESC questions whether procedures for
compliance laid down by the Commission are unnecessarily
complex. Prior approval arrangements could be modified and
more reliance placed on EFSA's Register. It also asks whether
the functioning of the EFSA will be slowed down by these new
procedures. The wording of paragraph 2 needs to be clarified
and the EESC proposes that only the claims need to be trans-
lated into the EU's official languages and industry needs flex-
ibility in translation for marketing purposes. Likewise in Article
15 it asks whether timescales are reasonable or too time-
consuming, with unnecessary delays in the approval process as
paragraphs 1 and 2 leave the control of timing in the hands of
EFSA.

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4.10
ANNEX, The EESC welcomes in principle the inclusion
of the Annex which attempts to clarify definitions and provide
a practical guide for producers to follow. It recognises the need
in a global society for this Annex to take full account of the
recommendations of the Codex Alimentarius and of the World
Health Organisation (WHO). It also asks the Commission to
initiate an immediate and detailed expert refinement of each
clause (e.g. on the use of ’natural‘) before the Regulation is
adopted and therefore finally closed. It disputes the interpreta-
tion of ’light/lite‘ on the grounds that consumers are more
likely to understand it as meaning ’low‘ rather than ’reduced‘, as
the Commission proposes.

5. Conclusion

5.1
The EESC regards the present proposal as an important
step forward both in consumer protection and in the harmoni-

Brussels, 26 February 2004.

sation of rules in the internal market. It looks forward progress
on nutritional labelling, while recognising that this is not the
only solution to the problem of communicating with consu-
mers.

5.2
It supports the general aims of the present proposal, but
suggests the need for simplification of procedures and a careful
scrutiny of timescales. Moreover, the EESC here recommends
certain compromises, which may be needed to balance the
requirements of consumers for more substantiated information
and the needs of industry to operate in a market free from
excessive constraints. It stresses the important contribution of
consumer education and the role that all stakeholders have to
play in providing it.

The President

of the European Economic and Social
Committee

Roger BRIESCH