Switzerland: Legal reform opens up nutritional supplements market / by Lara Skoblikov

In May 2017, a new Swiss legal regime on foodstuff has come into play in line with the food regulations applicable in the European Union (EU). As a result, companies finally have the opportunity to market food supplements in Switzerland without having to make drastic changes to their products and go through the burdensome authorization procedures. In fact, the absence of a notification requirement for food supplements makes Switzerland one of the most favorable countries to market in Europe. Still, the Swiss standards contain some particularities that should be kept in mind when entering the market.

Switzerland is not part of the EU and maintains its own set of food standards. Up until now, Switzerland was applying the so-called “positive principle”, according to which any food or food ingredient not expressly authorized under Swiss standards required express pre-marketing authorization, a procedure that could take months. This constraint particularly affected innovative products with unconventional ingredients among which many food supplements.

The new rules on foodstuff aim to facilitate the entry of food products originating from the EU member states into Switzerland and vice versa. Following the example of the EU, the “positive principle” has been abandoned. Instead, foods and food ingredients may be used freely unless they are prohibited or restricted under Swiss regulations. In practice, this means a significant liberalization of the use of ingredients. Still, maximum levels for vitamins and minerals, the express prohibition of certain plants and other substances have to be respected. Also, it is prohibited to sell foods that are unsafe, have medicinal properties or are novel foods.

An important change in the revised Order on Food Supplements is that it classifies food supplements as foodstuffs, which means that general food regulations apply mutatis mutandis to food supplements. This includes the Orders on food labelling and claims and the use of food additives, which have also been revised and are now almost fully in line with their European counterparts.

This logic applies equally to novel foods, which are foods or food ingredients that have not been consumed to a sufficient degree before 15 May 1997. Both in Switzerland and the EU their use is reliant on pre-market approval involving a thorough safety assessment. Considering the use of unique substances in innovative food supplements it places a significant red tape on their marketing potential. Under the new regime, Switzerland will accept novel foods authorized in the EU and foods that have a history of consumption before 1997 in any of the EU countries.

Unquestionably a major benefit of targeting the Swiss market is the absence of the obligation to register or notify food supplements. Almost every country in the EU requires that food supplements are notified prior to their commercialization, which can delay or complicate their marketing and may involve the payment of a fee. In the absence of such requirement, the commercialization in Switzerland is a favorable opportunity as it does not create additional administrative burdens or costs.

Considering all the above, food supplements compliant with EU standards in terms of composition and labelling will usually find easy entry into Switzerland.

The sting in the tail comes with some particular disparities left between the new Swiss rules and its European foundations. This is because in the absence of full harmonization of EU food supplement legislation, the EU countries have maintained their own maximum levels for nutrients and rules on the use botanical preparations and other substances. Switzerland now adds this rather chaotic system by setting its own maximum levels vitamins and minerals, which are nevertheless for the most part in line with the general EU trend. They have also set maximum levels for amino acids, fatty acids and some other substances, minimum amounts for their label declaration and mandatory warnings in some cases. Such restrictions are less common in the EU countries. Therefore, it will remain indispensable to verify compliance of a food supplements’ composition and labelling when introducing it into Switzerland or an EU country.

Finally, in certain areas where the EU is failing to take initiative, Switzerland has done so. For example, the Swiss Labelling Ordinance sets out clear conditions for the use of the terms “vegetarian”, “ovo vegetarian”, “lacto vegetarian” and “vegan”, something that the EU has been attempting for years now. Another example is the authorization of three insect species as food ingredients, something which could be considered especially courageous compared to the EU who maintains a cautious and legalistic approach by considering all insects novel foods.

All in all, the goal of removing the barriers to trade appears to be achieved by the reform and Switzerland can now be considered a serious food supplement market in Europe.