Why antioxidant claims have been killed off in the EU

By Annie Harrison-Dunn contact

- Last updated on GMT

'My personal view is that, unless it is clearly explained as a property of the food, it is a health claim or a reference to general well-being, which needs to be accompanied by an authorised health claim.' © iStock.com
'My personal view is that, unless it is clearly explained as a property of the food, it is a health claim or a reference to general well-being, which needs to be accompanied by an authorised health claim.' © iStock.com

Related tags: European union

European regulatory restraints have killed off antioxidant health claims as lawyers advise firms to play it safe despite leniency in some EU member states. We round up the legal status of the term, and the impact this has had on the market.

Antioxidants came to public attention in the 1990s, when scientists began to understand that free radical damage was involved in the early stages of artery-clogging atherosclerosis and may contribute to cancer, vision loss, and a host of other chronic conditions,”​ according to an article by the Harvard T.H. Chan School of Public Health.

A research fever followed, but results were mixed.

“These mostly disappointing results haven’t stopped food companies and supplement sellers from banking on antioxidants. Indeed, antioxidant supplements represent a $500 million (€650m) industry that continues to grow.”

© iStock.com 

It’s not hard to see why. ‘Antioxidant’ is a term that holds clear shopper-friendly appeal attracting 135,000 searches on google in May this year alone.

But it’s a claim that’s disappearing off shelves across Europe precisely for the concerns cited by Harvard.

The timeline

In 2007 the European Commission expressly described the term antioxidant as a health claim, which under EU law must be certified by the European Food Safety Authority (EFSA) to avoid misleading consumers.

“A claim is a health claim if in the naming of the substance or category of substances, there is a description or indication of a functionality or an implied effect on health, Examples: ‘contains antioxidants’ (the function is an antioxidant effect); ‘contains probiotics/prebiotics’ (the reference to probiotic/prebiotic implies a health benefit),”​ said the 2007 claims guidance​.

The statement sounds clear enough, but as ever the EU's 28 member states have differed in interpretation and implementation.

“Authorities such as the UK's ASA [Advertising Standards Authority] have pondered the issue, mostly with negative conclusions,”​ said Dr Luca Bucchini, managing director of Hylobates Consulting. 

“According to the ASA, the term ‘antioxidant’ is not a general reference to an authorised health claim, such as those on minerals and vitamins. It has considered the term in connection with on hold claims on botanicals, and not excluded its use ​a priori.”

naked juice

Partner at law firm Eversheds Owen Warnock cites an ASA case involving PepsiCo’s Naked Juice​ as a key example of the UK’s stance whereby an EU-approved vitamin C-oxidative stress claim was not deemed sufficient to back a broader antioxidant claim. 

In botanical-friendly Italy, the ministry of health lists 157 plants​ for which an antioxidant claim is permitted. The national list goes beyond the ‘on hold’ claims published on the European Commission’s website, outlaying which claims it would not object to. Other nutrients are left in the cold.

This could explain why Euromonitor International research shows Italy's antioxidant market was the strongest. Only five EU countries had food and beverages using antioxidants as key functional ingredients on its market. Italy was by far the most significant user of the claim. Functional antioxidant chocolate brought in retail sales of €18.5m in 2015, according to the market researcher. 

Despite this Italian leniency, partner at food law consultancy, Food Compliance International, Sebastián Romero Melchor said he advises companies to stick to the Commission’s guidance.

Playing it safe

“For us, the term ‘antioxidant’ can be used only for substances that have an authorised health claim on oxidative stress and on the basis of the flexibility principle or Article 10(3) of the EU nutrition and health claims regulation (NHCR) (e.g. ‘Antioxidant. [name of substance] helps to protect cells against oxidative stress’),” ​he told us.

“In order to err on the safe side, and to avoid divergences in the interpretation of the national authorities, we recommend including, in addition to the term ‘antioxidant’ the exact wording of the authorised claim in the label/advertising.”

There are eight such claims to choose from including copper, olive oil polyphenols and zinc.

Bucchini agreed that it was best to stick to the Commission stance that the term 'antioxidant' itself was a health claim.

“My personal view is that, unless it is clearly explained as a property of the food, it is a health claim or a reference to general well-being, which needs to be accompanied by an authorised health claim.

“I think it's reasonable to argue that claims with reference to oxidative damage could support an antioxidant general claim, though ASA's position has some merit.”

Warnock said it depended on the client.  

“[It] depends on whether client has the appetite, if challenged, for a fight to European Court of Justice (ECJ) to argue that the EU Commission guidance is wrong in law in saying that ‘antioxidant’ is a health claim under the definitions in the Regulation.”

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