Telecommunications are health claim loophole, says consultant

By Lorraine Heller

- Last updated on GMT

Related tags: Health claims, Nutrition

Health claims made about food products via telephone marketing calls could place some companies at an unfair advantage by allowing them to sidestep the EU nutrition and health claims regulation, according to an industry consultant.

Dr Mark Tallon, CEO of UK-based ingredient regulatory consultancy Nutrisciences said that product advice or helplines could be a “health claims loophole”,​ providing an unofficial route for some companies to make health claims about their products to consumers.

My concern is that a lot of clients have invested significantly to engage and comply with the NHCR and its processes. Enforcement was always going to be an issue but having no mechanism in place to address telecommunications will lead to many companies [using] direct sales as the primary means of communicate the health benefits of the products,” ​he said.

“Such communications left unchecked could be misleading and provide unfair advantage to those unwilling to abide by both the weight of scientific evidence and EFSA opinions​.”

ASA

According to Dr Tallon, this type of commercial communications should be covered by article 1(2) of the nutrition and health claims regulation.

Earlier this month, Dr Tallon raised these concerns in a training session with the UK’s Advertising Standards Authority (ASA), which commented that it does not regulate such claims.

In a call this morning with NutraIngredients.com, ASA confirmed that oral communications fall outside the UK’s advertising codes, so although ASA does not cover these, they could “possibly be an issue for trading standards”.

According to Dr Tallon, if opinions by EFSA are made law, the ASA would simply require direction to such opinion to agree with a product claim if challenged.

“This would speed up the adjudication time and clarity of what can and what cannot be claimed based on a product’s nutrition composition. However, where manufactures changed the wording of the claim the ASA would follow its normal procedures to make sure that any new wording could be supported by the scientific evidence, which could include that submitted to EFSA.”

Websites

Another issue discussed at ASA's Advice AM session - a training session for marketing professionals - was the use of websites to make product health claims.

Although we have regulations in place related to misleading advertising (Unfair commercial practices directive) very few cases are brought against company websites making false / misleading nutrition and/or health claims. Unless companies make medicinal type claims and the MHRA get involved, trading standards are often understaffed or unwilling to take companies to task​,” said Dr Tallon.

He added, however, that “the role of trading standards is not only to enforce regulations but to also assist companies to become compliant and being too heavy handed in such matters is a consideration for compliance officers​.”

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2 comments

interpretations of regulations.

Posted by Harry,

What is the meaning in the regulations. what is said what have I said what do you think I have said. Without the added problem of language interpretations and translations. A minefield.

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Loopholes for making health claims ?

Posted by Bert Schwitters,

One doesn’t have to “go illegal” or think in terms of "loopholes" to communicate health claims to consumers, either by telemarketing or through websites, or even through normal label-content. All a company has to do is open shop (or use its shop) in the USA, where Structure & Function statements are perfectly legal. Informing consumers this way is not a “loophole.” It’s making use of the freedom of speech that exists in the United States. Shipping products from the US to EU costs a few pennies nowadays. While the EU Commission continues its assault on the European food supplement industry and consumers by imposing a black-out on truthful information about probable and/or possible effects of food products, consumers won't be fooled and they will continue to seek and find their products.

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