Nutrition and health claims: An enforcement perspective

In the March 2011 edition of this journal, there appeared an overview of the regulation of health and nutrition claims (Gilsenan, 2011) with particular reference to the Regulation on Nutrition and Health Claims made on Foods (EC, 1924/2006). From the issue of regulation arises the equally important next question of how such regulation might be enforced. This article examines the role played by enforcement in the control of nutrition and health claims. The article examines the prospects for enforcement of the regulation with reference to enforcement theory and practice and previous decisions concerning health and nutrition claims, with particular emphasis on the UK. The use of nutrition and health claims is common (Caswell et al. 2003). An illustration of the extent of the part played by health and nutrition claims is provided by a survey of the Irish food market in 2007. The survey found that some 47% of foods featured a nutrition claim and some 18% a health claim (Lalor et al., 2010). Nutrition and health claims for food can help consumers make well informed choices in relation to their diet (Leathwood et al. 2007). Prior to the regulation there was no harmonised legislation explicitly governing the use of health and nutrition claims in the EU. Member states of the EU were left to control such claims at national level. In the UK there was no regulation specific to health and nutrition claims relating to food; only general control of misleading advertising applicable to all goods and services (see Table 1 below). In some member states the control of health and nutrition claims was the subject of self-regulatory initiatives such as the Joint Health Claims Initiative in the UK and the Swedish Food Sector's Code of Practice on health claims in the labelling and marketing of food products. Experience with the national codes has informed the implementation of the regulation (Asp & Bryngelsson, 2007). Whereas the regulation has provided a comprehensive approach to the control of health and nutrition claims, the same cannot be said for enforcement which remains a matter for member states. The lack of effective enforcement or the differences in the approaches of the member states may jeopardise the aims of the regulation of facilitating cross border trade and providing a high level of consumer protection.