The HFMA has expressed its disappointment after a legal challenge around what it called the flawed implementation of the Nutrition and Health Claims Regulation was dismissed. In 2012, the Health Food Manufacturers’ Association (HFMA) teamed up with the Dutch trade association, Natuur-en Gezondheidsproducten Nederland (NPN), to launch the legal action, calling for a halt to the list of permitted health claims.
The case was held in the European General Court, and sought the annulment of the Permitted List Regulation. It was hoped that the legal action would mean the Commission would have to correct the flaws in its approach to producing the Article 13 list of authorised claims.
Commenting on the news, HFMA Chair, Robert Taylor, said: “This is disappointing news for industry and consumers as it represents a total failure by the European General Court to recognise and address much of what is wrong with the flawed implementation of this Regulation.
“The HFMA and others took this legal action against the European Commission to halt the restrictive list of permitted health claims, which effectively outlaws hundreds of well-established health claims on all foodstuffs, including drinks, food supplements and foods. Just one example of hundreds of such claims is the failure to authorise the claim ‘dietary fibre helps maintain a healthy digestive system’.”
Continuing, Taylor said: “The Judgement represents a real missed opportunity to address a number of crucial issues and concerns, not least that of the Commission’s failure to meet the stated requirement that health claims should be ‘well understood by the average consumer’. We are now reviewing the Judgment in detail before deciding on further action.
“It would, of course, have been an extremely brave move for the European General Court to have overturned such a central piece of European legislation and we’re disappointed that, despite the fact that our legal arguments remain absolutely sound, the court was not prepared to take this step. Nevertheless, we believe that it was absolutely right that all of these points were made before the Court. In addition, we are heartened that since we launched this action over two years ago, the Commission has initiated and shown a willingness to open the discussion on certain areas.”
Commenting on the reasoning behind bringing the action in the first place, Taylor added: “It should be absolutely clear that this was never about the right to make claims that could not be substantiated, but was always about the freedom of consumers to access responsible information that is supported by robust scientific evidence appropriate for nutritional products rather than pharmaceutical drugs.
“Regardless, we are extremely proud of our efforts to defend our industry, members and consumers against this hugely flawed and poorly implemented Regulation. We initiated this legal action in July of 2012 as a last resort when our serious concerns about many aspects of the implementation of the Nutrition and Health Claims Regulation were falling on deaf ears.
“What is key to remember is that the HFMA’s members were never against appropriate regulation, and already operate in one of the toughest regulatory environments in the world. But there is a clear difference between proportionate regulation and over-regulation. We note that later this month, the European Parliament’s Legal Affairs Committee will vote on whether to recommend the review of aspects of the Nutrition and Health Claims Regulation.
“Inappropriate regulation is counterproductive and has far reaching consequences. It risks directly impacting public health by leaving consumers with a lack of essential health information, driving them in some cases to the largely unregulated internet, ironically reducing, not enhancing consumer protection. In addition, a major Economic Impact Assessment (EIA) report commissioned by the European Health Claims Alliance (EHCA) revealed that disproportionate implementation of the Nutrition and Health Claims Regulation could result in 13,300 job losses in the sector.”
Taylor thanked NPN, along with Co-Applicant member companies, Natures Aid and Quest Vitamins, from the UK, and New Care Supplements, from the Netherlands, as well as the Italian trade association, Federsalus, which intervened into the action, and its lawyer, Brian Kelly, and the legal team from Covington & Burling.