Dear Barbara

I have pleasure in enclosing the UK's official response to the Commission's discussion document on nutrition and functional claims (SANCO/1341/2001). We very much welcome the document and look forward to discussing proposals for harmonised legislation in due course. I would be very happy for our response to be copied to other Member States and for its publication on the Commission’s website.

Yours sincerely

Rosemary Hignett

This is the UK's response to this discussion paper. Promoting healthy eating is a key plank in UK public health policy because of the importance of diets in reducing the risk of coronary heart disease and cancer. Many UK consumers want to choose a healthy diet and are influenced in their food choices by labelling and advertising. Regulatory controls have a crucial role to play in ensuring that labels and adverts give truthful information which does not mislead and which does not undermine efforts to promote healthy lifestyles.

We therefore welcome this discussion document on nutrition and functional claims and look forward to participating in the debate about these issues with you and with other Member States. We believe that the recent increase in use of claims of this sort has exposed an important gap in Community legislation and are convinced that harmonised rules are needed to protect consumers. We cannot see any other way of providing consumers with adequate assurance that these claims are true and are made on a consistent basis.

Our detailed comments on all the issues raised in the discussion paper are attached at Annex A.

We believe that nutrient content claims (such as 'low fat') should be controlled by definition in Community law of benchmark criteria based on those agreed recently in the Codex Alimentarius Commission. Where the Codex guidelines offer an option we support choosing the one which leads to the most transparent labelling for consumers. For 'high' claims this means basing criteria on portion sizes to avoid the anomalies, like 'source of vitamin C' claims on parsley, which weight-based criteria introduce. We will wish to depart from Codex where claims are not significant for European consumers, as for dietary cholesterol, and where European practice demands it, as in relation to the proliferation of potentially misleading percentage fat free claims. In both these cases we think claims should be outlawed. For fibre, there is no Codex figure and we suggest the criteria should be food based, as there is no agreement at EU level on a definition and method of analysis.

Harmonised rules on nutrient claims will be an important step forward in improving the quality of information available to help consumers choose a healthy diet. But consumers will not be able to make fully informed choices between the foods available to them until all foods carry full nutrition labelling. We hope the Commission will be able to initiate an early Community-wide debate on this issue.

We regret that the Commission has chosen not to include all health claims, including disease risk reduction claims, in the current debate. We believe that the law should allow true information about all the potential health benefits of foods to be communicated to consumers. Research shows that consumers do not make a clear distinction between different types of claims.

For all health claims the key issues which need to be tackled are how to achieve independent validation and establish an appropriate regulatory framework for communication of the claim which provides the context individual consumers need to make informed decisions. It is particularly important that claims should not undermine advice to eat a varied and balanced diet. Development of a single coherent regime for all health claims will prove more effective in addressing consumers' needs than a piece-meal approach. Arbitrary legislative distinctions between different types of claims will lead to uncertainty and confusion and risks creating loopholes.

We would therefore urge the Commission not to proceed with further discussions on functional claims at this time but to widen the debate by publishing its discussion paper on health claims at the earliest opportunity. The Commission has the opportunity to draw on the experiences others have had in developing systems for substantiation and approval. We believe the UK's Joint Health Claims Initiative Code of Practice includes a number of good ideas which should influence development of a proposal for an EU system.

It is essential that the all aspects of presentation (wording, images etc) should be taken into account when deciding whether a particular advert or label is misleading.

We do not believe it is possible or desirable to categorise foods as "good" or "bad". We do consider, however, that some individual claims should not be allowed on certain products, for example those with high fat, sugar and/or salt content, because these claims might encourage adoption of unbalanced diets. Qualifying and disqualifying criteria for individual claims should be dealt with on a case-by-case basis.

It is important that claims for nutrients such as vitamins are only made for sources which are bioavailable and that they can be substantiated for the shelf life of the product. There are however some substances, such as fibre, for which bioavailability is not relevant and this needs to be taken into account.

Claims criteria should generally apply to foods on an 'as consumed' basis. They should relate wholly to the food for which the claim is made and not rely on a contribution from other foods that would be consumed with it; even if this might be normal practice e.g. breakfast cereals with milk. For some foods, e.g. sausages, where the 'as consumed' nutrient content will depend on the method of cooking (grilling, frying, baking etc) clear information on cooking method will need to be given.

There is broad international acceptance of the Codex definition of "claim" and the UK supports its use as a basis for development of a community definition.

We do not consider that criteria for content claims should be set at this time. They should be dealt with as health claims.

We support using the criteria for specific claims agreed within Codex as a basis for development of EU controls. Our specific comments on these claim criteria are as follows:

• We believe that the criteria for 'fibre' claims should essentially be food based. No other option is possible unless we can agree an EU definition and a method of analysis.
• 'Weak' or 'poor' claims would not be well understood in the UK. In English, use of the term "low" for claims is preferable.
• We see no justification for including both 'low' and 'very low' sodium claims. A single claim for low sodium of not more than 0.04g sodium per 100g/100ml is sufficient. Two tiers will cause consumer confusion.
• As 'light' claims are used to describe physical as well as nutritional characteristics of food, it is important that the way this claim is used is qualified to ensure that consumers are not mislead. Where the term is used to describe reduced fat or sugar products we would be support the use of Codex criteria.

• The term 'diet' has been in common use in food labelling in the UK for many years, particularly in relation to soft drinks and is well understood. We consider that the continued use of this term should be permitted.
• We support the proposed general conditions for 'comparative claims'.
• The UK opposes the use of dietary cholesterol claims for the reasons given in the paper, and considers that they should be prohibited.
• It would be undesirable to limit low sodium/very low sodium claims to dietetic foods. The terminology used in claims in the UK is generally 'low salt'.
• The UK is opposed to the use of X% fat free claims, which we consider misleading to the consumer. We understand that some argue that these claims should be allowed for foods that are low in fat. We disagree. However we believe that quantitative statements, like 'less than X% fat', are useful to consumers, so long as their use is restricted to low fat products.
• 'Without added' or "no added" sugar or salt/sodium claims are commonly used in the UK. They can provide useful information to the consumer but on occasion have the potential to mislead, in particular, where a product naturally contains a high level of the nutrient for which the claim is being made. This should be taken into account in setting criteria for such claims. Claims such as 'no added sweeteners, preservatives' etc should not covered by nutrient claims.
• the UK supports the use of specific wording, as proposed, for claims on foods which are naturally high, low rich etc in a nutrient, to enable them to be distinguished from other foods.
• 15% rule for vitamin and mineral claims - the UK proposes that this criterion should relate to portion size rather than per 100g or 100ml.
• The use of 'more' and 'less' claims on reformulated products for which the nutrient content change is less than 25% can provide useful information to consumers, but it must be quantified and the reference product clearly identified.

The UK supports adoption of criteria for "low sugar" claims. We propose that foods carrying such claims should contain not more than 5g per 100g or 100ml of the product ready to consume. In the case of a food which is naturally low in sugar(s) the claim, should take the form "a low sugar(s) food".

We note that the Codex criterion for 'sugar free' given in the Annex to the Discussion paper is incorrect. In the UK the criterion for such claims is 0.2g per 100g/100ml and we prefer this lower figure, which fits better with the accepted meaning of free.

CRITERIA FOR MAKING NUTRITION CLAIMS (paragraphs 27-36)

We believe it is unnecessary to define a limited category of functional foods for which claims are permitted. The key regulatory issue is the development of appropriate controls on all health claims.

The UK considers that, with certain exceptions, all foods that meet agreed criteria should, in principle, be capable of making a claim.

We consider that criteria for nutrient and functional claims for foods generally should not apply to infant and follow-on formula. Specific claims for these products should be dealt with under the relevant legislation.

We suggest that claims about the absence of allergens should be dealt with elsewhere in Community legislation.

We need an EU system for validation of claims which is practical, systematic and effective. The approach adopted in the UK Joint Health Claims Initiative offers an attractive way forward. Development of a list of generally accepted generic claims at EU level, which could be used on products which meet relevant criteria, would be supplemented by a system for the individual assessment of innovative claims for specific products.

A transparent framework, with clear criteria, should be developed at EU level to ensure that scientific evaluation is undertaken systematically and consistently. We are concerned that the discussion paper currently gives insufficient emphasis to human studies as the evidence base for the substantiation of claims. The UK's Joint Health Claims Initiative requires that assessment of the validity of claims involves review of all relevant available scientific evidence, and gives particular emphasis to human studies, including epidemiological and clinical studies and chemical extrapolation from food usage in disease states. The same standard of evidence is required for generic and innovative claims.

The highest degree of consumer protection would be provided by a statutory pre-market validation system. We would be prepared to consider other options, but only if it can be established that they provide sufficient consumer protection and would be less costly. In any case we believe that the cost of regulation should be borne by industry.