The Regulation of Food Advertising:
a Striptease in Instalments, (IV)
a Striptease in Instalments, (IV)
The applicable norms, point 4.
The Regulation (EC) No 1924/2006.
by Francisco Ojuelos and Julio Basulto. Translation by Ricardo Mena.
Original text in Spanish. The links lead usually to pages in Spanish.
In the last instalment, 3rd of the series (here the 1st and 2nd), we come to the conclusion that consumers, that is, the public to whom is addressed the greatest part of food advertising and its commercial presentation, have the following rights:
–To receive a correct and accurate information, by applying the Consumers Act (LGDCU).
–That such information, even when it be correct, should not lead us into error (they talk of mere probability), by its content or presentation, with regard to its benefits, its characteristics, its proper character (in the former “instalment” we stressed the capital importance of this question) or the results that may be expected from its use. Let it be noted, by the way, that we, mere mortals, have not enforced these conditions, but that they were laid down by the Safe Food and Nutrition Act and the Unfair Competition Act, which are the ones that establish these obligations on all advertirsers.
We have come, following the schema we had set up, to point 4 (1). You will see how comic it all is.
4) The Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods.
4.1 Importance of this important Regulation (allow us the redundancy).
This regulation, which is European, is one among those that regulate food presentation and advertising in Spain, according to the Spanish Act on Food Safety and Nutrition. Let us remember: besides declaring applicable the Royal Decree 1907/1996 (2), of 2 August, on Advertising and Commercial Promotion of Products, Activities or Services with a supposed healthy goal (we suggest you to read footnote 2 so that you understand the importance of this Royal Decree), the other cited norm in the Food Safety and Nutrition Act on food advertising is this Regulation (EC) No 1924/2006. Take a seat and fasten your seat belt.
As there is so much information on this, in accesible publications, due to its importance, we allow ourselves to summarise the most important preview that the publication of this Regulation offered: any health claim that accompany a food product must have passed through a thin sieve: the endorsement by a group of experts of the European Food Safety Authority (EFSA). In 2012, this sieve only let pass (that is, only approved, with a set of conditions) the 0,5% of around 44.000 solicited registrations by the manufacturers since 2006 (which is when this Regulation came out). Juan Revenga talked about this in his blog, in a text with the title “Industria alimentaria: ¿nos engaña o está desinformada?” (3)
4.2 The infectious lameness of the Regulation (CE) n.º 1924/2006.
Unfortunately, every law has a loophole: if the EFSA allows it to declare, for example, that some dosis of vitamine B6 can be accompanied by a health claim such as “it contributes to the immune system,” it is enough to add the particular quantity of vitamine to allow the manufacturer to put in capital letters, on the product, the aforementioned claim. We talked about this vitamine, present in a product called Actimel, in the former “instalment.”
But let us go to the crux of our concern: apart from the support by the facts that must contain the claims on healthy properties, and apart from the facility with which some advertirsers have succeded in placing a non-supported claim on profiles by introducing in their product an additional element the effect of which is acknowledged by the EFSA, the Regulation includes a set of conditions for the use of nutrient claims and healthy attributes (article 4). And this is something to which, in our opinion, enough attention has not been given. According to this set of conditions:
1. By 19 January 2009, the Commission shall, in accordance with the procedure referred to in Article 24 (2), establish specific nutrient profiles and the conditions, including exemptions, which shall be respected for the use of nutrition and health claims on foods and/or categories of foods.
By 2009? Permit us to laugh at this, instead of crying. For it results that the nutrient profiles (in footnote 4 we expand to what the concept “nutrient profiles” makes reference) have not been established yet by the European Commision. In other words, the expression “by 19 January 2009” contained in the mother of all Communitary norms devoted to establishing the veracity of claims on healthy attributes present in foods is, to this day, awaiting the public activity with regard to, no more, no less, the conditions for the use of these claims.
That is why we said in its day that this necessary norm is in force, but incomplete. The article exists but, if the Commission has not done its homework, does that make one suppose that the legislator has foreseen that pastries may be sold as healthy?
That is the reason why we have noted that this Regulation is lame. But the thing is that it suffers from an infectious lameness, because claims are being made, that is obvious. And without the foreseen conditions by the legislator (without those of article 4, at least). Let us keep pulling the thread. Here we have what the EFSA said in 2008 (revised in 2009; http://www.efsa.europa.eu/en/efsajournal/pub/644):
Foods promoted with claims might be perceived by consumers as having a nutritional, physiological or other health advantage over similar or other products without claims. The use of nutrient profiles aims to avoid a situation where nutrition or health claims could mislead consumers as to the overall nutritional quality of a food product when trying to make healthy choices in the context of a balanced diet.
Basically, the question would be, therefore, to avoid a product passing as healthy, when actually it is not, as it happens with our banana example and the Actimel with vitamine B6, described before. We return to the “proper” character of foods. It seems to us, then, that the prevision of the Regulation has as its object to avoid situations that in Spain are already proscribed by article 5 of the Unfair Competence Act.
Here there is more information. The scientific paper of the European Commission is available here. Obviously, and notwithstanding the extemporaneous result of this regulatory process, the pretension is clear.
Having come to this point, we want to share a reflection with you: it is not that some operators be great in finding the gaps through which to score a goal against us; the thing is that we have been seeing for quite a long time how the European Administration, EFSA included, look clearly and shamelessly the other way, hour after hour, day after day, year after year. Although it does not look the other way, unfortunately, with the elegance Laudrup did look at the stands when giving his passes, if we are allowed the football simile. But the prevision of the Regulation and its object (what it establishes) not only do they exist, but are as real and three-dimensional as a leather ball.
4.3 The legislation from a closer view.
Let us advance a little bit more, for those who may be more sceptical. The very same food sector, with the help of the Spanish Administrations, identifies this question with perfect clarity. In the document “Declaraciones de propiedades saludables en carne y derivados cárnicos” [Health claims on meat and meat products] (5) it is said the following with regard to the nutrient profiles (our emphasis):
Although there is a working document on the setting of nutrient profiles that the Commission has drafted (Working document on the setting of nutrient profiles - 13/02/2009) based on the opinion of the EFSA, while the aforementioned text be not approved it has no validity in legal terms. When that happen, its enforcement will mean that those foods that exceed certain values with regard to sodium, saturated fats and sugars (in the case of meat and its derivatives these are: 700 mg/100 g, 5 g/100 g, and without asignation, respectively) will not be allowed to contain any claim on healthy properties. On the other hand, if the product does not fulfil the nutrient profile, to make nutrient claims will only be allowed in two cases: a) if the claim refers to a reduction of fats, saturated fatty acids, trans fatty acids, sugars and salt or sodium, and b) if only an ingredient exceeds the profile, provided that stands close to the nutrient claim and with the same characters an indication of the nutrient that does not comply with the profile. The application of nutrient profiles, in the absence of a definitive concretion, may have a marked importance for the meat sector. To illustrate this repercussion we may consider the case, for example, of the dry-cured Spanish ham. It is a very appreciated food because of its sensorial characteristics, of high nutritive value because of its interesting composition with regard to the level of proteins, fat, vitamins and minerals, being its intake compatible with a healthy and balanced diet (Jiménez Colmenero et al., 2010). For its contents in beneficial compounds, the ham could include a wide number of nutrient claims (table 6), as well as some claims on healthy properties (tables 3 and 5), associated with the bioactivity of protein, iron, phosphore, etc. However, the hamʼs composition also presents some less convenient aspects like are those regarding the quality of the fat and the presence of sodium (Jiménez Colmenero et al., 2009 and 2010). The consequences of such a fact, bearing in mind the existence of nutrient profiles, is translated into the impossibility of making any nutrient and any health claims.
The situation is clear. At least it seems to us sufficiently overwhelming and at the same time depressing: today we can foist a healthy claim (that will make consumers believe that they are before a healthy food) on a product in which such statement should not be by any means, because its global nutrient profile is not healthy. Isnʼt it natural that if someone sells you, dear reader, a house “well positioned,” the last thing that it is expected is that some few meters away from the balcony there is a never-ending wall that annul the sights and impede the light from coming in? Well, the same thing with food products: when they tell us, for instance, that a food is “rich in healthy fats” (something that the public interprets as “good for the heart”), it is not tolerable that the food in question have huge quantities of salt (one of the main nutrients connected to the risk of suffering from cardiac problems) (6).
4.4 Respectful but vehement conclusion
What has been said in the present instalment goes only to ratify, with respectful vehemence, what we had concluded in the other instalments, and therefore, this is our conclusion of today: we must regard as illicit advertising that one which uses information that, even though it may be true, lead or may lead the addressees for its content or presentation into error, being susceptible of altering their economic behaviour, provided that it fall upon, for example, the proper character of the food in question so to facilitate a choice from the consumer. Period.
It will be much more the case, then, when the advertising is not true, as, for example, when attributing or suggesting that a food is healthy when the scientific consensus in nutrition advises to avoid or reduce it. The question is not that the sector should not sell, but that the consumer has the right to receive a true, faithful, and honest information.
4.5 Postscript: the nasty question of the endorsements
We do not want to end without making a brief reference to the question of the “endorsements.” We beg you to read with attention the following sentence that appears in article 11 of the Regulation 1924/2006, regarding the question whether a medical association may or may not endorse products, recommend them, or approve their formulation or composition:
National medical associations and health-related charities. In the absence of specific Community rules concerning recommendations of or endorsements by national medical associations and health-related charities, relevant national rules may apply in compliance with the provisions of the Treaty.
That is, there is no specific community normative on this issue (a pity, truly) and therefore it is up to each nation to draft a norm about it. If it is already drafted, everyone will have to go by it. In any case, the norm must be in accordance “with the provisions of the Treaty.”
Therefore, national regulation (the Food and Nutrition Safety Act) could have prohibited food endorsements perfectly well in all cases, instead of saying, merely (artículo 44.4) that “the use of endorsements from associations, corporations, fundations or institutions, related with health and nutrition will be permitted on advertising or direct or indirect promotion of foods, when: a) They are nonprofit organisations. b) They undertake, in writting, to use the economic resources, obtained from that collaboration on activities that favour health, through investigation, development and specialised divulgation in the field of nutrition and health.
Is that all? Only formal conditions with regard to companies that endorse, without making any reference to the endorsements themselves? Shall we relay everything on the bona fide of these operators?
That is all: an explicit is not necessary on this point of the Law by virtue of which endorsed foods, to be so, should be considered healthy foods for their nutritional profile, their suitability and, above all, their lack of unhealthy characteristics, because the said prevision is already in another place of the Law. In this sense, article 4 of the European Regulation, the Food and Nutrition Safety Act, and the Unfair Competition Act do not allow that foods with an unhealthy profile may have an endorsement with which to confuse the consumer.
We return again, to the presumed illegalities that we noted before; for example, to the circumstances like the seal of the Spanish Pedriatrics Association on some cookies with a 21% of sugar (7), that is, with a nutritional profile clearly undesirable with regard to health. What makes us return to our first simile at the beginning of these instalments: A misspelling is still such no matter how many people keep incurring in it.
We are not the only ones to think that associations should not grant their logos to particular food brands: Jordi Salas-Salvadó, professor of nutrition and bromatology and member of the Scientific Committee of the Spanish Agency of Consuming, Food Safety and Nutrition (AECOSAN), thinks the same about it, as you can verify in this interview that carried out the dietist-nutritionist Pablo Barcina on November 6 of this year: https://www.youtube.com/watch?v=1I-Ng0EHFhA (minute 1:35).
With this interview we leave you hoping to meet you again in the next instalment, but before leaving we will let the windows of the balcony wide open so that some light may come in, as we need it badly, and eat a banana too, why not.
So that you feel not the wait too long, we recommend you to read a brilliant text that appears in the blog “Gominolas de Petróleo”, with the title “No dejes que la publicidad alimente a tus hijos”.
1. General Advertising and consumers.
2. Unfair Practices.
3. “Specific” unfair practices on food advertising.
4. The Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods.
5. The Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers.
6. The responsibility of advertisers and their agents.
(2) The truth is moreover, that the Royal Decree 1907/1996, of 2 August, “reinforced in rank and renovated in time,” if we are allowed to say it, by the Act of 2011, let us remember, Act 17/2011, of 5 July, on Food Safety and Nutrition, establishes (no more no less) the prohibition of advertising food products in the following cases: 1. That they are destined to prevention, treatment or healing of contagious diseases, cancer and other tumor diseases, insomnia, diabetes and other diseases of the metabolism. 2. That they imply specific slimming properties or against obesity. 3. That they pretend a therapeutical advantage for one or more diseases, without adjusting themselves to the requirements and conditions prevised in the Medicine Act and other dispositions that expand it. 4. That they offer securities of alleviation or certain cure. 5. That they use as endorsement any type of authorisations, homologations or controls from medical authorities of any country. 6. That they make reference to their use in medical centers or to their distribution through pharmacies. 7. That they pretend to contribute testimonies from medical professionals, famous people or known by the public or real or supposed patients, as a means to lead into consumption. 8. That they pretend to substitute the common diet or nutrition, especially in the cases of maternity, lactation, infancy or third age. 9. That they attribute to some forms, presentations or food products brands of daily consumption, particular and specific preventive, therapeutic or curative properties. 10. That they attribute to food products, destined to dietetic or especial regimes, preventive, curative or other different ones from the recognised one given to such products according to their special normative. (…) 12. That they imply or note that their use or consumption favour the physical, psychic, sporting or sexual performance. 13. That they use the term «natural» as a characteristic vinculated to supposed preventive or therapeutic effects. 14. That they attribute superfluous character or try to substitute the benefits of the medicines or medical products legally recognised. 15. That they attribute superfluous character or try to substitute the enquire service or the intervention of medical professionals. 16. And, in general, that they attribute preventive or therapeutic effects that are not supported by sufficient technical or credited scientific proofs and expressly recognised by the Stateʼs medical Administration.
(3) Revenga J. Industria alimentaria: ¿nos engaña o está desinformada? El nutricionista de la general. 28 June, 2012. Online: http://blogs.20minutos.es/el-nutricionista-de-la-general/2012/06/28/industria-alimentaria-nos-engana-o-esta-desinformada/ [Retrieved: 24 de noviembre de 2015.]
(4) “The setting of nutrient profiles for foods bearing nutrition and health claims”, Scientific Opinion of the Panel on Dietetic Products, Nutrition and Allergies (Request Nº EFSA-Q-2007-058), availabe online at: https://www.efsa.europa.eu/sites/default/files/scientific_output/files/main_documents/nda_op_ej644_nutrient%20profiles_en%2C3.pdf.
(5) Health claims in meat and meat products. Summary: This article has the purpose of showing the different opportunities the meat sector is provided with to establish health claims and the specific conditions of use within the legal established frame, derived basically from the Regulation (CE) nº 1924/2006. Date of publication: September 2014, number 229 of the Magazine Eurocarne. Available upon payment in the following link: http://www.eurocarne.com/revista-ficha?codigo=16052 and free in the following webpage of the Public Organism whose personnel drafted it, the CSIC: http://digital.csic.es/handle/10261/115082.
(6) World Health Organization (WHO). Reducing sodium intake to reduce blood pressure and risk of cardiovascular diseases in adults, 2015. Online at: http://www.who.int/elena/titles/sodium_cvd_adults/en/ [Retrieved: 24 November, 2015.]
(7) Basulto, J. El cuento de Julio sin miedo (Julio Basultoʼs reply to the Nutrition Committee of the Spanish Pedriatrics Association). The blog of Julio Basulto. 24 August, 2015. Online at:http://juliobasulto.com/el-cuento-de-julio-sin-miedo-respuesta-de-julio-basulto-al-comite-de-nutricion-de-la-asociacion-espanola-de-pediatria/ [Retrieved: 24 November, 2015.]