Jean Savigny, a partner at the law firm Keller and Heckman, told a workshop on nutrition and health claims in Brussels last week that Commission guidance given on Article 1.4 of last year's generic descriptor annex to the EU nutritional and health claim regulation (NHCR) lacked a proper legal basis and contradicted EU law.
In an attempt to clarify the details of a regulation on generic description, covering food and beverages like cough drops, digestive biscuits, probiotics and tonic water, the Commission defined 'traditional use' as verifiable evidence demonstrating the presence of this class of food or beverages on the market in member states over at least 20 years before the regulation was enforced.
“Simply this is a decision that did not belong to the Commission,” Savigny told NutraIngredients.
He added that an annex within the regulation in theory meant that applicants could be rejected by EU member states before even reaching EU level, which should hold final power to accept or reject applications. “Member states have no role to play at this stage,” he said.
Article 1.4: "Extreme confusion"
Of the NHCR's original stated aims was to reduce consumer confusion over generic descriptors, or denominations, which may imply an effect on human health. Savigny said if it had been the intention of the regulator to specify 20 years for products that could claim traditional use, they could have done so, but that it was not the place of the Commission to step in and stipulate this time frame.
“Deciding that ‘traditional use’ requires a use ‘over at least a 20 year period’ is tantamount to amending Article 1.4 of the NHCR, which is only possible through the ordinary legislative procedure,” he said.
He said this confusion was indicative of the rushed circumstances in which it was adopted. “Article 1.4 was adopted very last minute, it was an extreme confusion,” he said. “If there had been real discussion, the facts would have been there.”
In addition to this he said that part A of the generic descriptor annex could be read as an amendment to the article, which again should only be possible through proper procedure, since it gives some power to the 28 EU member states in the application process.
“Here member states would be involved as opposed to the European parliament. Again it might result in a pre-decision,” he said.
Possibility to challenge
Following the introduction of the generic descriptor rules back in September, Savigny said there was a two month period whereby the regulation could have been challenged, yet nobody did. However applicants could still challenge on a case-by-case basis, he said.
“In my opinion that decision could be challenged,” he said, noting however, "We are not there yet."