A scan of probiotic companies and ranges shows some, like Danone, have already taken the plunge and removed the word ‘probiotic from marketing for Actimel and Activia in most countries, while others like some smaller supplement firms seem barely aware they may soon be in contravention of the law.
Companies like supplements leader, Solgar, and Müller in the UK and Ireland are reviewing their marketing.
UK legal expert, Owen Warnock, from Eversheds, said European Commission advice showed probiotics and antioxidants and other food ingredient descriptors would be interpreted as implied health claims and subject to local enforcement action.
“The word ‘probiotic’ gives a hint of its functionality and so, as the UK Department of Health has indicated, is likely to be interpreted as a non-authorised health claim and pursued by local authorities.”
A probiotic strain genus like Lactobacillus may be more likely to succeed in a purely compositional fashion.
The EU nutrition and health claims regulation (NHCR) states that a general descriptor is, “used to indicate a particularity of a class of foods or beverages which could imply an effect on human health”.
Since probiotics have not won health claims under the NHCR, they are deemed unauthorised implied claims as of December 14, when the six-month lay-period on about 1500 rejected claims expires. Only 222 claims have been approved.
Groups like the Global Alliance for Probiotics (GAP), the International Probiotics Association (IPA) and the Yoghurt and Live Fermented Milks Association (YLFMA) continue to lobby for acceptance of the term and work to win claims.
The YLFA hopes that the submission of new evidence to the central EU science agency may see approved probiotic claims in 2013.
The UK Council for Responsible Nutrition executive secretary Julie Hayward said it was still not clear exactly what would happen come December 14, as there remained much that was open to interpretation.
But she forecast uneven policing from local trading standards teams that could compound issues regarding regulation of the regulation.
“But I would advise brand marketers to be bold,” she said. “Stay within the law, but be bold.”