Released on 9th August, the consultation consists of two proposed amendments of the Nutrition and Health Claims (England) regulations of 2007.
The first is a reform of the process of enforcement of regulation of nutrition and health claims with the aim of creating a more proportionate approach to enforcement. This would be done by introducing an improvement notices regime, which essentially gives companies time to make improvements before authorities take action.
The second proposes the removal of 60 pieces of redundant tertiary legislation.
The OHID says the potential reforms will continue to ensure that nutrition and health claims made about a food or drink are accurate and do not mislead the consumer, enabling for an informed product choice which meets lifestyle and nutritional needs.
Claims should only be made about food and drink products following their authorisation with relevant supporting scientific evidence and where the food meets the conditions of use, as per the NLCS legislation.
The legislative updates will affect food manufacturers, importers, and retailers. The consultation will close at 11:59 on 31st October 2023.
To make a product nutrition or health claim, companies in the UK must comply with the Nutrition and Health Claims Regulations 1924/2006, which is enforced by local authorities including Trading Standards or the environmental health department.
Yet, the OHID’s present publication notes that this regulatory enforcement only involves the immediate criminal prosecution with fines or imprisonment.
The publication states: “The current enforcement procedure does not align with other food labelling enforcement, which is less bureaucratic, more proportionate, and largely welcomed by businesses and enforcement agencies alike.”
It quotes a regulation from the Food Safety Act of 1990, with regards to food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control, which enables for enforcement to serve improvement notices prior to criminal prosecution to build compliance.
Thus, the OHID’s first proposal involves amending the Nutrition and Health Claims (England) regulations of 2007 to introduce an improvement notice regime following an initial breach. This would use powers from sections 16(1)(e) and (f), 26(1)(a) and (3) and 48(1) of the Food Safety Act 1990.
A similar consultation was previously launched by Food Standards Scotland (FSS), which is soon due to be presented to Scottish Parliament. The Welsh Government are also due to launch a separate consultation in parallel with England.
Previously, as per the EU commission, an authorised or rejected nutrition or health claim was made into a regulation. Since leaving the EU these 72 Commission Regulations were retained, with 60 being rejected claims, whilst approved claims were held within the annex of Commission Regulation EU (No) 432/2012.
With these 60 claims currently not serving a legal purpose, the OHID’s second proposal involves the removal of the tertiary legislation.
The publication stresses: “Revoking this legislation has no legal impact as the legislation either rejected claims or the authorised claims are retained in the annex to Commission Regulation EU (No) 432/2012.”