The Spanish self-regulatory agency for advertising Autocontrol issued a very questionable interpretation of the nutrition claim "no added sugars". Fortunately, it makes for a nice regulatory analysis.
The claim "no added sugars" was used on a custard product containing chocolate. According to the nutrition declaration, it contained 6 g of sugar/100 g. It was accompanied with the statement "contains naturally occurring sugars in the milk and chocolate". Autocontrol considered that the nutrition claim was used in accordance with Regulation 1924/2006 on nutrition and health claims.
Let's have a closer look.
Pursuant to Regulation 1924/2006, "a claim stating that sugars have not been added to a food, and any claim likely to have the same meaning for the consumer, may only be made where the product does not contain any added mono- or disaccharides or any other food used for its sweetening properties. If sugars are naturally present in the food, the following indication should also appear on the label: ‘CONTAINS NATURALLY OCCURRING SUGARS’".
The Regulation distinguishes between sugars that are added to the food on one hand, and sugars naturally present in the food on the other hand. Autocontrol assumed, apparently without any careful consideration, that the sugar was "naturally present" in the chocolate. It considered that the product therefore did not contain any added mono- or disaccharides or any other food used for its sweetening properties in the sense of Regulation 1924/2006 and that the claim was lawfully used.
Regulation 1924/2006 is however not an isolated instrument, but should always be read together with the rules in Regulation 1169/2011 on labelling, which lead us to a very different conclusion.
Pursuant to Regulation 1169/2011, ‘ingredient’ means "any substance or product, including flavourings, food additives and food enzymes, and any constituent of a compound ingredient, used in the manufacture or preparation of a food and still present in the finished product, even if in an altered form; residues shall not be considered as ‘ingredients". A ´compound ingredient’ means "an ingredient that is itself the product of more than one ingredient".
The designation 'chocolate' is reserved under EU law for products produced of cocoa and sugar. According to the above labelling definitions, it is a "compound ingredient", with sugar being one of its ingredients which is added during the manufacturing process. By using chocolate in a product, sugar is added as an ingredient, precluding the use of the claim "no added sugars".
Sugar can also be naturally present in an ingredient, for example in milk or fruit. In this case, sugar is not an ingredient "used in the manufacture or preparation of a food" in the sense of Regulation 1169/2011, but already present in the raw material and a "no added sugars" claim would be possible, as long as it is used together with the statement "contains naturally occurring sugars".
The above conclusion is supported by the Codex Alimentarius Guidance for Use of Nutrition and Health Claims. Codex standards are not binding, but should be considered an important interpretation tool for EU legislation. The Guidance explains that a “no added sugars” claim may be made provided – among others – that “the food contains no ingredients that contain sugars as an ingredient (Examples: jams, jellies, sweetened chocolate, sweetened fruit pieces, etc.)”.
Autocontrol rulings do not have normative status, but can give useful guidance on how claims can be used. The present case is an example of how it can sometimes be wiser to perform your own assessment instead