Even as this happens, it seems the European food supplement industry is underestimating the impact of internet retailing on their businesses; and what online retail means regulation-wise.
In one of the most innovative segments of nutrition – sports nutrition - cross-border retailers have indeed sprung up quickly, and are prospering; botanicals are following.
Amazon is offering thousands of food supplements, either directly or via third-party sellers, through its UK, German and French sites. In a sector traditionally hampered by national rules and byzantine local administrative practices, cross-border online retail can mean great change.
If a product is sold from the UK to a consumer in Italy, which laws apply? Would UK rules apply? If Italian rules apply, how are they enforced? Authorities can’t knock on every consumer’s door to check if a local language label has been applied properly.
The resulting uncertainty has led some operators, including the largest global players, to offer the same products on their European websites as are available in the US, without much consideration of EU rules.
Across the cyber Pond
Some food supplements available to the online European consumer may be more strictly regulated by the US Food and Drug Administration (FDA) than by any European authority.
This is a consequence of a number of factors.
- First, some EU member states don’t hold online stores responsible for their contents, health claims or safety of the food supplements offered on their websites; placing the onus on the manufacturer-marketer, not the online retailer. When member states have attempted to take action they have found there’s no legal entity responsible within law’s reach.
- Other regulators have been shy to enforce consumer protection law when the online store is physically located in another EU member state. Though there are legal means for cross-border enforcement, it seems that it is diplomatically too demanding to question what happens in another member state’s territory.
- Third, Amazon, the world’s largest internet retailer has claimed – at least in the EU - that it is not responsible for supplements sold on its website. The company has explicitly refused to institute an EU law-based system to ensure the safety and legality of products – as well as claims - offered on its website. This sets an example for the marketplace.
In this sense, recently, some EU leaders have advocated a free trade agreement between the EU and the United States, which might include a single market for dietary/food supplements. Online retailers may have made it happen sooner than policymakers had dared hope.
EU versus national law
However, a single transatlantic market for food supplements is not a foregone conclusion.
Under EU law, food supplements need to be safe, and operators need to ensure that they sell safe products. Passage through external customs does not exempt them from further scrutiny (e.g., when doping substances are present but have been overlooked), or from specific legislation (e.g., on food additives or mineral sources).
Authorities, under EC regulation 882/2004, have a duty to ensure all operators comply with food law – even if the ultimate consumer is in a neighbouring country. Under this legal framework, enforcement action is being carried out by some member states under EU rather than national law, and may have a deep impact on the single market.
Regulating online retailers
While other member states drag their feet at enforcing EU law, fundamental questions remain of online retailers.
Consumers visit supermarkets, and expect – with reason – that the products on sale there conform to applicable legislation, and that supermarkets have taken steps to ensure they are both safe and legal.
Recently, when nitric oxide misbranded as sorbitol in Northern Ireland was sold on eBay, resulting in the tragic death of an Italian woman, eBay issued an alert and halted all sales of sorbitol, much like a physical store chain would do.
However, the practice of most internet retailers does not generally involve the supplier qualification process, quality controls and routine recalls that physical retailers have long performed. Can major, trusted internet retailers keep stocking products that have been the subject of a recall a year before – just because they have a broad disclaimer? Is that the virtual shelf where European manufacturers want their products to be stocked?
Whether it’s to ultimately be American food law that will govern the food supplement cyberspace, or whether it’s EU food law that’s enforced throughout Europe, internet retailers need to follow strong safety-based rules if online food supplements sales are to prosper in the long term.
Luca Bucchini PhD, MPH, is the managing director of Italian-based Hylobates Consulting, and project manager of the €6m EU plant food science initiative, PlantLibra.