Probiotics ban leads to marketing revolution
Manufacturers of all products, which have traditionally made health claims, will need to find clever ways of differentiating them from others on supermarket shelves come December when the number of health claims that can legally be made will be dramatically cut.
Manufacturers will have to reformulate and fortify their products or use clever marketing to capitalise on the health claims that have been approved, according to Dominic Watkins, a senior associate with legal firm DWF and an expert in health and nutrition.
From December, only those 222 general, article 13.1 ‘general function’ health claims that were approved by the EU earlier this year will be permissible. And most of these relate to minerals and vitamins in foods, such as calcium and vitamin C.
This will have a big impact for products, such as those using ‘superfood’, antioxidant claims and on probiotic yogurts, which have not been approved.
Implied claims
From December the term ‘probiotic’ will not be allowed on product packs, said Watkins. There is also intense debate about whether the use of probiotic bacterial strain names will be allowed either, he added, since these could be argued to constitute an ‘implied claim’.
“One of the biggest challenges about the regulation is understanding the breadth of what is and is not a health claim,” said Watkins. “In those scenarios one could see Trading Standards thinking, well maybe that is an implied claim. But there is a requirement [on labelling] to be specific about what the ingredients are so that the consumer is not mislead. And there is potentially a conflict there.”
Those involved in the probiotic field are still hopeful of eventually getting a health claim submission approved by the European Food Safety Authority’s panel on Dietetic Products, Nutrition and Allergies (NDA).
But until such time as probiotics win approval – which Watkins doubted would be for another two years – manufacturers and retailers would be left with no option but to make use of reformulation or other clever marketing to retain their business, he said.
Probiotic ad campaigns dropped
Already, he said, some well-known branded probiotic yogurt manufacturers had changed their advertising campaigns to focus on attributes other than the probiotic content.
Watkins also noted that supermarkets, such as Tesco, had discreetly responded to the changing regulatory environment.
Retailers had changed the focus of their marketing over the past year, he said, for example, own-label yogurt drinks had been rebranded to focus on other permissible health, nutrition and ‘natural’ benefits, which would not be in contravention of the rules.
“You will end up with a period of time where people will inevitably consider reformulation with things that have got approved health claims, for example, fortification with vitamins and minerals,” said Watkins.
EFSA guidance
To help manufacturers meet the specific requirements of the NDA panel, EFSA has just published further guidance on making health claims. It includes two documents advising on how manufacturers can justify health claims for their products when seeking approval.
They are the last two in a series of six which had already covered claims related to gut and immune function; antioxidants and cardiovascular health; weight management; and bone, joints and oral health.
Issues addressed in the documents include definitions of ‘beneficial physiological effects’ and the type of evidence that will be required to substantiate a claim.
EFSA has also just completed a further assessment of 13.1 claims, which covers most types of health claims for products. This dealt a further blow to the probiotics industry by rejecting digestive and vaginal health claims for nine individual strains of Lactobacillus probiotics.
