By Richard Clarke
Europe’s Nutrition & Health Claims Regulation comes into full force just 11 days before Christmas.
It’s likely to dampen the festive spirit for plenty of ingredients companies – notably those marketing ingredients that are not (yet) backed by EFSA-approved health claims. They are, understandably, awaiting the onset of 14 December 2012 with a fair degree of trepidation.
Nevertheless, there is actually some good news to savour: there are strong signs that business-to-business communications in the EU will be exempted from the Health Claims Regulation. That, at least, is the way the UK’s Department of Health sees it.
In its official guidance to businesses, the UK’s DoH says: “While the Regulation applies to claims made in commercial communications about foods it is our opinion that it will not control claims made in communications within trade (business to business) … whether the claim is in the labelling, advertising or other presentation of the food. This is provided that the recipients are acting within the scope of their professional activities and that they are not being addressed as final consumers of the foods.”
The message couldn’t be clearer, and it is highly significant for ingredients companies. It means they should in theory be able to continue promoting their products to their customers using PR and advertising through trade magazines and websites (such as Nutraingredients) much as they did before – responsibly, of course, but with the freedom to discuss the benefits of their ingredients whether or not those benefits are approved by EFSA.
It should be noted that not everyone shares the UK DoH’s interpretation of the law. In a letter to interested parties earlier this year, the DoH admitted that some EU member states believed B2B communications should fall within the scope of the regulation (although it did not specify which member states felt this way).
This doesn’t necessarily mean the DoH has got it wrong – rather that B2B commercial communications remain a grey area. This is because the regulation itself is not explicit about exactly what a “commercial communication” is. However, the wording of the regulation is nonetheless pretty clear on the fact that the law is specifically designed to protect consumers – implying that business-to-business communications are indeed exempt.
Uncertainty is rarely a good thing, and the European Commission may choose to clarify matters in this area in the future. Nevertheless, the unambiguous position taken by the UK on this matter – a position that is supported by other member states – is a welcome boost for the ingredients industry. It gives a strong indication that ingredients companies will still be able to speak openly to their customers, provided they are careful their communications do not target end-consumers.
Communications through trade magazines with controlled distribution will not pose a particular problem in this respect. Websites, however, are usually accessible by all. As such, it is highly recommended that ingredients companies place some kind of disclaimer on their homepages explaining that the information provided is intended for other businesses and not individuals. Assuming the website does not appear to appeal to consumers, this disclaimer should be sufficient.
Of course, in this highly regulated age we’d still recommend taking legal advice – and checking to see what guidance on the Health Claims Regulation is provided by the authorities in EU countries where your company is active.
But as things stand, it is our view that trade PR and advertising are set to play a much more important role in the marketing mix than ever before. As such, we think ingredients companies should consider prioritising B2B communications as a matter of urgency, whether or not they have approval for their ingredient – or, indeed, especially if they do not have approval for their ingredient.
