Food Law News - EU - 2009

FSA Letter, 9 January 2009

CLAIMS – Report on Discussion on Nutrient Profiles at the Standing Committee (18 December) and the Commission Working Group (19 December)

Standing Committee on the Food Chain and Animal Health, 18 December

Discussion on nutrient profiles kept to political considerations. The Commission explained that a revised paper concerning food categories, specific conditions and thresholds levels would be adopted as an Annex to the legal text establishing nutrient profiles. This would need to be cleared through Commission services, but it was hoped to be able to take a vote in February with publication of the adopted text after scrutiny by the European Parliament before the summer. The Commission Working Group on 19 December would be followed with another meeting to look at technical issues on 12 January.

The vote on Article 14 and 13(5) health claims was again postponed while the Commission seek legal clarification of certain points, including the ability for fixed wording for claims. Member States agreed that authorised claims required certain component parts, such as mention of the specific food component that has the nutritional or physiological effect (and not, for example, replacing it with the name of a branded product), and the health effect expressed in ways that would not mislead consumers (e.g. into thinking it was a medicinal effect) and the context of the diet. The Commission thought it would not be possible to insist automatically on fixed wording and agreed that guidance to making claims would be helpful.

The Commission also confirmed that it was necessary to include rejected claims in the legal text and that it was of the opinion that one text for a batch of claims was an efficient way of regulating. One aspect of this for Article 13(5) claims was the question of a transition period. The Commission asked Member States to confirm whether any rejected claims were actually on the market or not to help it decide whether there was a case for a transition period for claims not covered under Article 28 (6).

The Commission raised the issue of the need to refer to a risk factor for disease risk reduction claims in order to comply with the requirements of Article 14 (2), and the rare cases where claims might not be able to relate to any one specific risk factor. Member States agreed that it was important for claims to reflect EFSA's opinion in total, so where there is a risk factor it should be mentioned but one Member State asked if it would be possible where no risk factor is identified to have some flexibility, such as allowing a generic reference to risk factor(s), which Article 14(2) did not appear to prohibit.

Commission Working Group, 19 December: nutrient profiles

The Commission tabled a new document dated 16/12/2008 with revisions to the food categories and some amended threshold levels for the three key nutrients in food categories. It also sought to confirm exemptions from the nutrient profile and develop specific conditions for foods that require reconstitution (e.g. dehydrated foods) before being ready for consumption.


The Commission confirmed that the exemption for fruit and vegetables would apply to those without added salt, sugar or saturated fat. Member States agreed this. Some thought it should be clarified that fruit juice is also exempted, and what kind of juice – i.e. the status of juice drinks, nectars and juice with added sugars under the fruit juice regulations. Some Member States questioned the status of nuts, noting that the specific category was no longer available. After some discussion the Commission noted that there were two options: either an exemption for nuts (without added salt, sugar or saturated fats – e.g. chocolate coating) could be looked at, or nuts could be considered under the fruit, vegetables, nuts and their products category with an enhanced threshold for saturated fats. The Commission was resistant to enhancing the saturated fat threshold and so would look at an exemption. It also considered that neither seeds nor peanuts were properly nuts, but should be classed as vegetables (legumes).

Under the Parnuts exemption, there was little support for the view that sports foods should be defined and included here, although some Member States thought that only Parnuts foods for which limits have been set for salt, sugar or saturated fat should qualify.

Some Member States requested retention of the energy cap and exemption of a wider range of foods, but the Commission concluded that the argument for this was weak, except perhaps for sweeteners, and it would look into this in more detail.

Specific Conditions

The Commission explained this addition to the paper to clarify that for dried and concentrated products the profiles apply to the food reconstituted according to manufacturer's instructions. Several Member States thought that this applies only to products that cannot be eaten as sold, and would not extend to breakfast cereals or similar foods. The Commission thought it would be too difficult to take account of all the different ways foods can be cooked, and noted that for fish or meat, e.g. sausages or sliced ham, the profiles should apply as sold, confirming that the test data on which the profiles were based had been established on this basis.

The Commission asked Member States for views on how the profiles should apply to generic promotions (i.e. commercial communications) such as for red meat, where no two cuts/joints would perform the same under nutrient profiles, and. A variety of views highlighting the need, difficulty and mixed acceptance of specific conditions ended in the Commission concluding that these campaigns might benefit from adapted thresholds (not exemptions), provided they related to the specific categories of foods that the EFSA opinion highlighted as of importance to the diet.

A more general point about “reduced” claims and the operation of the derogations was raised. One Member State explained that there were really three distinct issues that the testing of the nutrient profile thresholds had highlighted: first, that the 30% criterion was a disincentive to reformulation, but that opening the Annex in 2009 would allow further consideration of this under comitology rules. Second, that reduced fat claims should be allowed use of the derogation, but that there was only a threshold for saturated fat. There was agreement that the saturated fat threshold should act for fat generally. Third, that the two derogations together could disqualify totally use of the reduced claim and that this could be disadvantageous for products reformulated for health benefits. Member States felt this should be discussed in more depth.

Thresholds and categories

Spreadable fats and oils

The Commission explained that the saturated fat threshold had been set at 30g to allow differentiation between butters and to ensure the profiles were consistent with the spreadable fats legislation. Some Member States questioned this, saying that the products covered by this legislation had fixed denominations that differentiated between products. This would allow a tighter threshold at a more realistic level for consumer confidence, which test results indicated could be at 20g threshold. The Commission would look again at this figure, with a view to encouraging further reformulation.

Member States were generally in agreement on the sodium level, but a concern was raised about the ability to use the claim “unsalted” for butter. The Commission agreed that this was a product denomination, not a claim.

Fruit, vegetable and nut products

There was some disagreement over the sugar threshold, with some Member States in favour of an increase to 20g, but there was no consensus.

The Commission confirmed lentils were included in this category. The Commission also agreed that soy products could be considered here or, as argued by a few Member States, within the category containing the product for which they are a substitute, but was looking for a way to make this work within the structure of the nutrient profile. The alternative was to place soy in “other foods”.

Meat and meat products and fish and fish products

Several Member States disagreed with the more relaxed sodium threshold for meat and meat products at 700mg, noting that ‘special treatment' of certain foods was only defensible when related to the whole diet, and the nutritional benefit here was for raw meats, not processed meats and 500mg was adequate for these products. However, a larger number of Member States were in favour of increasing the sodium threshold for fish and fish products to match the new threshold for meat.

Dairy products and cheese

Member States generally accepted the more relaxed saturated fat threshold of 2.5g for dairy, although some preferred 2.6g to ensure that all whole milk yoghurts would receive the same treatment.

Several Member States wanted a higher sodium threshold for cheese to align with the new 700mg thresholds for meat and fish, and some requested relaxation of the saturated fat threshold as cheese is a good source of calcium. The Commission pointed out that calcium is available from other sources without high saturated fat or salt content.

The Commission resisted a change to the definition of this category (in terms of proportion of dairy constituent), as it did all such requests made to accommodate single or limited groups of products. However, the Commission did concede that if claims were shown to be vital, future derogations to allow them to be made could be considered.

Cereal and cereal products

Most Member States accepted the tighter threshold of 500mg for sodium in breakfast cereals and several made a strong case for revising the sugar threshold to 15g or 20g. The Commission agreed to look at the sugar levels again and consider an exemption for dried fruit.

There was no time to complete discussions on the cereal and cereal products category. There was no clear consensus on sodium levels, particularly in connection with bread, and after some discussion on dry baked goods with a lower water density the only conclusion the Commission could draw was to reconsider a different base of 100kcal to see if it could give more accurate results across this wide category. The Commission requested written comments on this and other foods categories, namely non alcoholic beverages and ready meals, for which time restricted discussion.

Date of next meeting: 12 January

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