The press release issued this morning gives you the result of the committee vote in the European Parliament. The vote was close, but not close enough. In the world of politics and advocacy, a miss is as good as a mile. Nearly 40% of the Committee on the Environment, Public Health and Food Safety (ENVI) voted to support the veto — and ANH-Intl was the main organisation supporting a ‘no vote’ for the claims list.

To say we’re disappointed is an understatement. But we saw it coming in the weeks leading up to the vote. At the start of our lobbying, when the draft list was proposed late in 2011, most Members of the European Parliament (MEPs) were wholeheartedly in favour of the list. Few recognised the many problems associated with the Nutrition and Health Claims Regulation (NHCR; No 1924/2006) and its implementation by the European institutions and Member States.

As time progressed, more and more MEPs recognised the problems, and letters from ANH-Intl supporters to MEPs played a major role in this education. However, bizarrely, this new-found understanding did little to cause the majority to shift positions. The political leaders and ENVI coordinators were generally able to push their members into line, and most eventually ‘bought’ the idea that the list itself wasn’t a problem; that it should be voted through because it authorises claims, rather than bans them. The problems, many MEPs felt, could be resolved after this list was voted through. This, dear reader, is a highly risky strategy, and presently we have no real idea of how receptive the European Commission, European Food Safety Authority (EFSA) and Member State governments will be to change. All prior indications suggest that a more enlightened approach to the regulation of health claims within the EU is unlikely, at least without major, continued pressure — and possibly even legal action.

Defective reasoning

Subject to an expected positive plenary vote in the European Parliament next week, adoption of the Community list will see non-approved health claims disappear from the EU marketplace within 6 months, especially if they are added to the EU’s Register of rejected claims. Many of the claims that have received negative opinions from EFSA and are at risk of being added to the rejected claims list are based on sound or plausible science, while still not meeting the unrealistic threshold set by EFSA.

Dagmar Roth-Behrendt MEP (S&D) felt that, “The list we have is a good list as these health claims are justifiable”. Ms Roth-Behrendt was obediently supported by Linda McAvan MEP, who declared consistency a sin: “Most of [the] companies which are complaining are those which were opposed to the list from the beginning”. She added, “Let’s vote for the positive list, let’s vote for consumers”. It seems that all she forgot to add was, “….to have virtually no information on the health benefits of foods and nutrients”.

EFSA’s scientific substantiation requirements have changed more than once and are unnecessarily strict, a fact acknowledged by Satu Hassi MEP (Greens/EFA). But she decided, “To give a green light to this list” despite her misgivings. Another MEP voting against her instincts was Pilar Ayuso MEP (EPP), who felt that the list contains, “Shortcomings and defects...but it is better to have this list than nothing”.

What happens now?

Assuming a positive plenary vote, the 222 approved health claims may be used throughout the EU’s 27 Member States once they are added to the EU Register. Conversely, rejected claims will be banned in all 27 Member States once added to the EU Register. But the future of health claims that appear on neither list is highly uncertain. It is possible, for example, that such claims may be subject to national rules, allowing each Member State to determine how to manage such claims within their borders. Many are likely to be influenced by EFSA opinions, so the relatively liberal regime of some EU Member States may become history by 2013.

The position of health claims on plant-based nutrients or botanicals – the most important category of foods within the human diet – is even murkier. Final assessment by EFSA of botanical health claims has been delayed, and EFSA is considering whether to revise its assessment procedure for these products after it rejected 97% of the 1,500 or so applications in its first assessment. The future ability of EU citizens to discriminate between healthy and less-healthy foods, already massively compromised by the limited number of approved food and food ingredient health claims, does not look rosy.

Moving forward

Although the Community list is a Parliamentary rubber-stamp away from becoming EU law, there are several options that would cushion some of the worst effects. These include:

1. Delay publication by the European Commission of the list of rejected claims on the EU Register until all 4,637 submitted ‘general function’ (Article 13.1) claims have been evaluated or re-evaluated
2. Pressure the European Commission to add as few claims as possible to the EU Register of rejected Article 13.1 claims. Any that have plausible evidence, and yet still don’t meet EFSA’s excessively high standards of evidence (unequivocal proof of a causal relationship based on human studies using healthy populations), should not be added to the list of rejected health claims
3. Allow Member States to continue to allow all health claims under transitional measures until such time that the rejected list is published
4. EFSA should be forced to alter its approach to assessment of claims, and implement a lighter regime for Article 13.1 health claims, as proposed in Recital 26 of the Regulation

In the long run, the ultimate recourse may be judicial review of the NHCR before the European Courts of Justice (ECJ). The Regulation contains enormous shortcomings in terms of the language of the Regulation itself and the European Commission’s approach to its implementation, as well as Member State implementation and enforcement. That MEPs can still see fit to approve the Community list is nothing short of a disgrace, and is strongly suggestive of the extreme influence and self-interest of Big Food.

Once we have solidified our approach, we will issue further calls to action, to allow those that are still passionate about helping the cause to direct their action in the most effective way possible. Remember: you are being heard — and the more noise that is made by public citizens, the better.

Press release of 22 March 2002 about ENVI vote

ANH Health Choice campaign page

ANH Europe homepage

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