Call for regulatory change: Influencers making health claims while experts are silenced

The call for change comes off the back of a new survey of nutrition experts which reveals widespread confusion around Article 12 of the Nutrition and Health Claims Regulation (NHCR) prohibiting authorised health claims in consumer-facing commercial communications which make reference to the recommendations of individual doctors or health professionals.

To test the clarity around this legislation, UK-based dietitian Carrie Ruxton, PhD, and nutritionist Margaret Ashwell conducted a survey of more than 100 dietitians and nutritionists which found healthcare professionals are uncertain what they can and can’t say.

Discussing the survey and their new paper​, Dr Ruxton points out that celebrities appear to have more freedom than health care professionals.

“The 2006 EU Nutrition and Health Claims Regulation (NHCR) which banned all unauthorised health claims also appears to ban healthcare professionals from making authorised health claims in commercial communications. That's how officials in several countries interpret the regulation's Article 12c which prohibits ‘claims which make reference to recommendations of individual doctors or health professionals’.”​

She explains this means that an uncontroversial statement such as 'vitamin A contributes to the maintenance of normal vision', approved by the European Food Safety Authority, cannot be stated by a dietitian or nutritionist on a food business website or social media feed.

The official UK guidance says: "the added weight of perceived professional expertise might unduly influence consumers and the objective of the Regulation is that consumers should not be misled in any way".

Ruxton continues: “I can see why this would be justified for unauthorised health claims since a nutritionist or medic could add weight to a misleading claim. But is this 'belt and braces' approach really needed for authorised health claims which, in view of their official approval, are true, not misleading?

“If that isn't bad enough, influencers are not similarly constrained. So, while a dietitian working for a dairy company is banned from writing ‘calcium is needed for the maintenance of normal bones’ on the company website, a paid blogger or celebrity can do this.

“It seems unfair given that the dietitian is a qualified nutrition professional and bound by strict codes of practice, unlike the celebrity.”

The report concludes that, as a minimum, additional training is required to help professionals better understand the scope of the regulation.

The report further recommends a number of options. The first being the amendment of the NHCR to remove Article 12(c).

It states: “The risk of divergent interpretation of the practical application of Article 12(c), combined with unclear, occasionally inconsistent guidance and a lack of UK case law, could place nutrition professionals who work with the food industry at legal or reputational risk.

“Rather than being deemed a potential risk to consumers, as implied by the legal restriction in Article 12(c), healthcare professionals may, in fact, be safer communicators of authorised health claims than those to whom the restrictions do not apply, such as influencers or celebrities, since healthcare professionals are regulated and guided by codes of practice.

“Hence, it is essential to level the regulatory playing field. Amending the NHCR to remove the burden of Article 12(c) on healthcare professionals or updating GB guidance to apply a narrower interpretation of the wording of Article 12(c) could ensure that dietitians and nutritionists are free to work as trusted messengers across the food chain, including within commercial settings. Such an action would be consistent with the UK's better regulation agenda which strives for evidence-based, proportionate regulation for industry.

"Amending the NHCR to remove Article 12(c) would enable dietitians and nutritionists to be regulated in the same way as everyone else, hence improving the consistency and fairness of the NHCR. If concerns remain about overt personal recommendations for food and supplemental products, this could be dealt with by strengthening professional codes of practice."

The second option is the amendment of the Nutrition and Health Claims Regulation to extend the scope of Article 12(c). However the authors note that a downside to this approach is that a revised NHCR would have to legally define ‘celebrity’ and ‘influencer’, which may be problematic.

The third option is to revise the Department of Health and Social Care guidance on the Nutrition and Health Claims Regulation.

The report states: “There is scope to ensure that the guidance better reflects the actual NHCR wording prohibiting ‘recommendations of’ health professionals. This would enable dietitians and nutritionists to write/speak about authorised health claims in commercial communications and, in the cases of business owners, be able to market and advertise their own products—currently prohibited if they happen to be a dietitian or nutritionist and wish to be recognised as such in social media or advertising.”

The report concludes that whatever option is taken, it is essential to level the regulatory playing field.

"Amending the NHCR to remove the burden of Article 12(c) on healthcare professionals or updating GB guidance to apply a narrower interpretation of the wording of Article 12(c) could ensure that dietitians and nutritionists are free to work as trusted messengers across the food chain, including within commercial settings. Such an action would be consistent with the UK's better regulation agenda which strives for evidence-based, proportionate regulation for industry,” it concludes.