Health claims were first introduced into legislation with the introduction of R146 in 2010. This legislation has a standard list of specific claims and also a list of words that indicate some form of health claim that may not be used.
The prohibited words are: health, healthy, wholesome, nutritious and any indication that a food can provide balanced or complete nutrition. In the course of consulting I have regularly encountered food marketers who insist that their food is healthy, wholesome or nutritious so why can they not say so?
The simple answer is no food is in itself healthy. Any given food can only be considered healthy if part of a balanced diet. Nobody can argue with the fact that water is necessary for daily life and therefore is healthy. But it is only healthy as part of a balanced diet that includes numerous other foods. Conversely sodium is considered unhealthy by many, but a diet that excludes sodium in its entirety would be harmful. These simple examples hopefully illustrate why no single food can be labelled using any of the above mentioned words.
Industry has attempted to get around this law with numerous methods, two commonly used (or attempted) are the use of endorsements and registering words as a brand.
The regulations published in 2010 closed the gap on endorsements. No product may be endorsed by a health practitioner or related organisation or even individuals that may insinuate a specific health aspect of food. There is exception made for organisations who are registered with the Department of Health for use of specific logos. This has not stopped companies still using this methodology of marketing whether it be by using a reference to a certain diet or having an Olympian training in the background of advertisements. Some of these products have been removed from the market, but walking through the supermarket many of these products are still on the shelf. This is indicative more of a lack of enforcement on the ground than a retraction of this part of the regulation.
The second avenue, registration of words as trademarks, is dealt with in the current draft regulation where this practice is outlawed. There is some indication that a grace period will be given for those brand names registered prior to 1995, although the dates given in the draft are now long come and gone. It will be interesting to see how far this regulation is taken. Will only specific use of words be targeted or any hint of the use? Words such ‘Pure’, ‘Fresh’ and ‘Natural’ appearing in brand names come to mind.
An issue with how nutrient content claims are currently dealt with is that generally only one requirement needs to be fulfilled e.g. for low fat a product simply has to have less than 3 g of fat per 100 g. This allowed manufacturers to push up for example sugar levels and use synthetic substitutes to make up for mouth feel and taste while still being low fat. Ultimately this does not make for a “healthier” product. A nutrient profile calculator has been introduced in the draft regulations requiring a food product to achieve a certain score before a claim can be applied to the product. The score takes into account total energy contribution, sugar, fats, sodium, protein, fibre, fruit and vegetable content. This can almost be seen as an attempt to create a scoring system for the term healthy, although this word may not be used.
A criticism of this system in previous drafts has been that some seemingly “healthy” foods would then not be allowed to carry a claim. This has been largely solved by having different categories of food products namely beverages, naturally high fat foods (e.g. oils and cheeses) and other food products.
Although no system is perfect this has gone some way to close the gaps in the regulation.
The use of any term on a label must be substantiated by sufficient scientific evidence, normally some form of laboratory study. Where no specific test can be associated with a claim e.g. there is no test that can prove “healthy”. So as a food marketer if you can’t substantiate a claim through legal reference the chances are that the specific word may not be used.
Article by: Norah Hayes