ASA CONSTRAINS COSMETIC CLAIMS FOR COLLAGEN DRINK by Nikolaas Tilkin-Franssens

The UK body watching over fair commercial practices, has found a number of claims for a food supplements containing collagen to be in breach of nutrition and health claims rules. The website of the brand Dermacoll contained a number of indications that the collagen peptides have a beneficial effect on skin. More in particular claiming that collagen supplementation could combat skin ageing and reduce wrinkles, plump and fill fine skine lines, strengthen the skin and drench and hydrate the skin.

ASA marks the differene between ‘claims which stated or implied a beneficial physiological effect on or change to the structure of the skin to aid in its function of providing a barrier’ which do constitute health claims versus statements on ‘temporary improvements in appearance or maintenance of normal appearance of the skin’ which it considered to be cosmetic claims out of the nutrition and health claims scope.

However in terms skin ageing, ASA considered the distinction between health claim and cosmetic claim is not fully clear. It argued some may perceive the prevention of skin ageing as a health claim and therefore such statement should be accompanied by a specific authorised health claim. When perceived as a cosmetic claim, the effect should be substantiated by evidence.

For the other claims “Plump and fill out fine lines”, “strengthen your skin from the outside in” and “Drench and hydrate your skin” ASA also looked at the additional statement “strengthen and regenerate the underlayers of the skin” appearing with a picture of skin layers. This made the Panel conclude the product had a specific physiological action which would have a beneficial health effect on the function of the skin, thus constituting a health claim. In terms of “strengthen your skin from the outside in” ASA argued that the word “strengthen” extended to a heightened level of protection to the skin against damage and therefore the statement be a health claim. Neither of the claims was authorized or linked with an authorized health claim.

The defendant company, Dermacoll, submitted scientific references in order to demonstrate the claimed effects. However in the view of ASA any was sufficiently supporting the made allegations.

UK Advertising Standards Authority ruling on HealthArena Ltd t/a Dermacoll (19 June 2019) - link

BELGIAN FOOD SAFETY AUTHORITY RECALLS SUPPLEMENT DUE TO HIGH CAFFEINE CONTENT by Nikolaas Tilkin-Franssens

FAVV/AFSCA, the Belgian instance looking over the safety of food marketed in Belgium, has ordered the recall of the product named Phedra Cut Lipo XT. The supplement is used for weight reduction. During audit by the agency it was discovered contains levels of caffeine which exceed the maximum recommended daily intake.

FAVV – (10 September 2019) - link

SLOVAKIA OPENS DOOR TO CBD SUPPLEMENTS by Nikolaas Tilkin-Franssens

A recent amendment to the Psychotropic Substance Act will remove cannabidiol as an active substance from the list of psychotropic substances. This will allow commercialization of food supplements containing cannabidiol in Slovakia. The law is expected to be adopted in 2020.

Bill amending Act no. 139/1998 Coll. on Narcotic Drugs, Psychotropic Substances and Preparation (as on 16 August 2019)  - link

POLAND SETS NUTRIENT LIMITS FOR FOOD SUPPLEMENTS by Nikolaas Tilkin-Franssens

The Polish Food Safety Agency has adopted maximum levels for the use of vitamins and minerals in food supplements. In the absence of European restrictions on the permissible quantities of nutrients in food supplements, Poland introduces national rules to regulate the intakes of vitamins and minerals. The new rules will set limits for vitamin A, vitamin C, Folic Acid, Niacin, Zinc and Manganese. The restrictions are captured in a set of Resolutions. Earlier in may the use of Vitamin D was already restricted. For Folic Acid an additional warning needs to be included in the labelling to inform pregnant women they should consult a doctor before taking folic acid through food supplements.

RESOLUTION NO. 5/2019 OF THE DIETARY SUPPLEMENTARY TEAM of 11 June 2019 on expressing an opinion on the maximum dose of vitamin C in the recommended daily dose in dietary supplements

RESOLUTION NO 6/20019 OF THE DIETARY SUPPLEMENTARY TEAM of 11 June 2019 on expressing an opinion on the maximum dose of vitamin A in the recommended daily dose in dietary supplements

RESOLUTION NO. 7/20019 OF THE DIETARY SUPPLEMENTARY TEAM of 11 June 2019 on expressing an opinion on the maximum dose of folic acid in the recommended daily dose in dietary supplements

RESOLUTION NO. 8/20019 OF THE DIETARY SUPPLEMENTARY TEAM of 11 June 2019 on expressing an opinion on the maximum dose of niacin in the recommended daily dose in dietary supplements

RESOLUTION NO. 9/20019 OF THE DIETARY SUPPLEMENTARY TEAM of 11 June 2019 on expressing an opinion on the maximum dose of manganese in the recommended daily dose in dietary supplements

RESOLUTION NO. 10/20019 OF THE DIETARY SUPPLEMENTARY TEAM of 11 June 2019 on expressing an opinion on the maximum dose of zinc in the recommended daily dose in dietary supplements

UK WATCHDOG WITHHOLDS CLAIMS ON SKIN HEALTH FOR BEAUTY CHOCOLATE by Nikolaas Tilkin-Franssens

The UK Advertising Standards Authority (ASA) found a number of claims for a chocolate named esthechoc to breach the rules on the use of nutrition and health claims.

On the product’s website, the allegation was made that the product would ‘help to regain your skin health and slow down the ageing process,’ followed by the words ‘the world’s first nutricosmetic with a strong, scientifically proven impact on the metabolism of ageing skin’. ASA considered the references to skin health would be perceived as a beneficial effect of the food and therefore constituted a health claim. The claim however is not authorized nor linked to an authorized claim under the EU Nutrition and Health Claims Regulation (Regulation 1924/2006).

In addition, the website included a statement that the food ‘promotes optimal recovery from any intervention in plastic surgery. As a result of this influence on skin metabolism it is possible to observe a reduction in skin reddening and oedema after treatment and during recovery ‘. ASA argued that the description leads to consumer’s believing the product could treat skin conditions that arise after plastic surgery. The ASA codes of conduct in marketing communications sets that claims which imply or state that a food may prevent, treat or cur human disease are not acceptable.

Further, ASA found that the claim ‘confirm unmatched systemic circulation levels of beneficiary polyphenols that contribute to a daily balanced diet’’ implies that esthechoc contains more polyphenols than other chocolates. The comparison of nutrients between foods constitutes a comparative claim for which it is required the product contains at least 30% more of the respective nutrient, polyphenols, than a similar product. The defendant did however not provide sufficient evidence of the quantity of polyphenols in the compared product and whether that reference product would represent a similar dark chocolate.

The marketer was instructed to no longer show the claims or otherwise make them comply with the applicable rules for the use of nutrition and health claims.

ASA Ruling on Cambridge Chocolate Technologies Ltd (21 August 2019) - link

ITALY IMPOSES WARNINGS FOR THE USE OF CURCUMA SUpPLEMENTS by Nikolaas Tilkin-Franssens

The Italian Ministry of Health introduces precautions for the use of plant preparations and extracts derived from the Curcuma genus. It will be required to include in the labelling of curcuma containing preparations that in case of liver conditions, or conditions related to the biliary or the biliary tract or in case of calculosis the use of the product is not recommended. In the event of concomitant use of medicines, it is advised to consult a doctor.

The Decree updates the positive list of botanicals included in the Ministerial Decree of 10 August 2018 on the use of food supplements and herbal substances and preparations (Decreto 10 agosto 2018  Disciplina dell'impiego negli integratori alimentari di sostanze e preparati vegetali).

Decree del Ministero della Salute - 26 luglio 2019 Integratori alimentari contenenti estratti e preparati di piante del genere Curcuma - link

LABELLING GUIDANCE ON INSECT FOODS AVAILABLE by Nikolaas Tilkin-Franssens

The European association for the promotion of insect foods, IPFF (International Platform of Insects for Food and Fee) has published an extensive guidance document covering the labelling requirements applicable to insect foods.

Note that at present there is no general authorization yet for any insect food or food ingredient  under EU law. Currently, several novel food applications for insect foods are still pending with the European Commission. There are however a number of EU Member States which do permit the use of a limited number of insect foods. Belgium for instance allows the use of 10 different types of insects for human consumption (for more information, click the following link [Dutch/French only]).

The Guidance elaborates on the main EU instruments that regulate the labelling of foods in general, the Food Information to Consumers Regulation (Regulation 2011/1169) and the Regulation on the use of Nutrition and Health Claims (Regulation 2006/1924). In case insect foods find novel food authorization, the applicable legal name is likely to be captured in the authorization and the Union List of Novel Foods.

The Guidance includes practical examples to illustrate the application of EU food labelling principles to show for instance what would be considered misleading information or what could constitute an unauthorized health claim.

Two important considerations on the declaration of allergens for insect foods are included in the Guidance. First, potential allergenicity may derive from the feed materials given to insects which are destined for human consumption. When insects eat wheat-based feed, there may be gluten present in the insects. Accordingly, in such case the presence of gluten as an allergen should be labelled. Secondly, insects as such are not considered allergens but there is evidence of links with  allergenic reactions to crustaceans. The allergenicity of an insect food does forms part of the novel food assessment, so potentially insect protein may be considered an allergen. As this currently not yet the case, the guidance advises as a precautionary measure to include a statement in the labelling of insect foods which highlights the similarity between the allergenicity of insects and that to crustaceans and dust mites.

IPIFF – Guidance: the provision of food information to consumers - link

NORWAY STRENGTHENS RULES ON ADDITION OF NUTRIENTS AND USE OF OTHER SUBSTANCES by Nikolaas Tilkin-Franssens

A recent Norwegian amending act creates additional rules on the addition of vitamins and minerals and the use of other substances in foods. The positive list of permitted other substances is also applicable to use in food supplements. The amendment makes that Norway is taking a stricter approach on the addition of vitamins and minerals to foods than the general European Union approach.

European Union Regulation 1925/2006 indicates the vitamins and minerals and their respective sources which may be added to foods but does not specify any food categories nor does it establish maximum levels. Norway, as part of the European Economic Area, enforces the EU Regulation but has adopted additional legislation indicating which vitamins or minerals can be added to a particular food category as well as establishing maximum levels applicable for these categories.

The restrictions are however not completely limiting. Foods which do not comply with the restrictions can be marketed when duly notified and by submitting the information specified in the new Appendix 2 of the Norwegian Regulation on the Addition of Vitamins and Minerals to Foods (Forskrift om tilsetning av vitaminer, mineraler og visse andre stoffer til næringsmidler). Note that notification of fortified foods and food supplements at time of placing on the market in Norway is always required. The amendment exempts the obligation for foods which only contain added sodium, chloride and potassium.

Further, the amendment establishes a list with a number of other substances which may be added to foods including food supplements. The list also holds conditions of use for these substances. Foods which do not meet these conditions can be marketed if notified together with the required information under Appendix 4. There is also the possibility to make an application for the addition of other substances to foods and food supplements which are not on the positive list. Different to notification for foods and food supplements that do not meet the conditions of use, the Norwegian Food Safety Authority has to give formal permission for the use of non-listed other substances.

The new set of rules will apply from 1 January 2020.

Forskrift om endring i forskrift om tilsetning av vitaminer, mineraler og visse andre stoffer til næringsmidler (Regulations on amendments to regulations on the addition of vitamins, minerals and certain other substances to foods) (1 July 2019) - link

NETHERLANDS EXTENDS LIST OF TOXIC BOTANICALS by Nikolaas Tilkin-Franssens

An amendment to the Dutch Commodities Act Decree on Herbal Preparations (Dutch: Warenwetbesluit Kruidenpreparaten) introduces additional restrictions for the use of herbal preparations. Firstly, it adds a number of toxic compounds that herbal preparations may not contain such as scopolamine and their derivates. Further the amendment inserts Aconitum carmichaelii, Aconitum kusnezoffii and Pilocarpus jaborandi to the list of restricted plants.

Decree amending the Commodities Act Decree on herbal preparations and the Commodities Act Decree on administrative penalties regarding the addition of certain harmful (substances in) herbal preparations and applying certain technical amendments - link

DUAL FOOD QUALITY STUDY SHOWS FEW COMPOSITIONAL DIFFERENCES by Nikolaas Tilkin-Franssens

As part of investigating quality differences for similar products among European countries, the Commission has published a study which compared products in terms of composition and their presentation.

A number of countries claimed that food producers consistently marketed different (read: lower) quality foods in a number of European Union countries. Although food safety standards are harmonized in the European Union, the quality of food is less clearly regulated. Only for a limited number of foods compositional criteria apply or quality schemes may apply (e.g. geographical indications). The consideration has been made that these acts could be potentially be viewed as unfair commercial practices by inducing consumers to believe a product has similar characteristics on the basis of analogous branding while in reality the composition differs. The misleading character of such act will depend on the circumstances as compositional differences can also relate to legitimate and objective factors. Such may be adaption to local consumer preferences, reformulations in line with local nutritional recommendations or variability in raw material supplies.

Following the allegations, the Commission allocated resources to investigate the matter. The recent report on the testing of 1380 products of 128 different food products from 19 different member states is one of these initiatives. The study concludes that for the studied products there is no consistent geographical differentiation. In addition, in the cases a compositional difference is found it does not necessarily imply a difference in the products’ quality. Only for 9% of the evaluated products a difference in composition was found where the front of pack was identical. A much larger fraction of products (31%) having a identical or similar front of pack showed to have an identical composition.

As it is realized, the 1380 only represent a small fraction of products, therefore testing and evaluation will continue with the same methodology.

Joint Research Centre: Results of an EU wide comparison of quality related characteristics of food products - link

UK WILL MAKE ALLERGY LABELLING FOR FOODS PACKED FOR DIRECT SALE MANDATORY by Nikolaas Tilkin-Franssens

The UK authorities have announced the introduction of new rules on allergen labelling of foods that are packed at the sellers premises for direct sale.

The adoption of the new law is triggered by the death of a teenager eating a baguette from the popular chain of English sandwich shops Pret a Manger. At present, foods which are prepacked at the sellers premises do not require a full ingredient list in line with European Regulaton on food information to consumers (Regulation 1169/2011). The sandwich the girl had bought did not have an ingredient list making that the girl was not able to observe the bread contained sesame to which she was severely allergic.

The new allergen labelling rules will make the display of a full ingredient list mandatory for all foods prepacked for direct sale. The new legislation will apply from 2021 in order to allow producers and retailers the time to adapt to the new set of labelling rules.

FSA welcomes new allergen labelling law (25 June 2019) - link

CAN DON QUIXOTE SERVE AS THE KEEPER OF SPANISH MANCHEGO CHEESE? by Nikolaas Tilkin-Franssens

In its judgment of 2 May 2019, the European Court of Justice has ruled that images or illustrations which trigger association with a certain region or area can be part of the protection of a Protected Designation of Origin (PDO) or a Protected Geographical Indication (PGI).

The ruling related to the PDO of Spanish Manchego cheese but has essentially provided for an extensive protection of PDOs in general. European rules on quality schemes for agricultural products and foodstuffs protect registered names (PDOs and PGIs) against any misuse, imitation or evocation. For the given case, the European Court was asked to interpret the extent of ‘evocation’ in terms of figurative signs.

The request for a preliminary ruling was triggered by the local foundation responsible to oversee the Manchego cheese PDO. The foundation initiated proceedings against a local distributor selling cheeses that were not covered by the protected designation of origin of Manchego cheeses. The cheeses only had names linked to the famous literary character Don Quixote de La Mancha and depicted typical features of the la Mancha region in Spain, including landscapes, windmills and sheep.

Although the cheeses did not have a name similar to Manchego, the foundation persisted and eventually appealed to Spanish Supreme Court. The Supreme Court decided to stay proceedings and ask the European Court of Justice whether the use of figurative signs could also trigger the evocation of the ’Manchego PDO.

The Court of Justice decided the protection of registered names does not only refer to words ”but also to any figurative sign capable of evoking in the mind of the consumer products whose designation is protected”. The national court will further need to determine whether the respective images “are capable of triggering directly in the consumer’s mind the products whose names are registered”. Furthermore, the Spanish court will also need to consider whether the link between the illustrations of local features and the PDO is sufficiently strong to create a conceptual proximity, taking account that the challenged producer is established in the same region. The court added that the consideration should be based on the concept of the average consumer who is reasonably well informed and reasonably observant and circumspect. This concept should cover European consumers, “including consumers of the Member State in which the product giving rise to evocation of the protected name is made or with which that name is geographically associated and in which the product is mainly consumed”.

EU Court of Justice, Case C‑614/17, Fundación Consejo Regulador de la Denominación de Origen Protegida Queso Manchego v Industrial Quesera Cuquerella SL, Juan Ramón Cuquerella Montagud - link