Update on natural regulation and policy in the UK...
Transcript of Update on natural regulation and policy in the UK...
Update on natural regulation and policy in the UK and the
EU: How does it differ from the rest
of the world?
Food Matters Live 19th November 2014, London
Dr. Ina Gerstberger
All „natural“ foodstuffs?
� Some examples from the shelves
Ingredients: Tea (Water, Tea Extract from Tea
Leaves), Sugar, Citric Acid, Natural Flavour, Reb
A (Purified Stevia Extract).
Ingredients: Cultured Grade A
Reduced Fat Milk, Sugar, Natural
Vanilla Flavor, Pectin. Contains
Active Yogurt Cultures Including
L.Acidophilus.
Dr. Ina Gerstberger │ 2014 2
The truth about „natural“
The majority of consumers equal “natural” claims with more “healthier” products but only one third feels that it can really trust the term “natural” (Source: Mintel Group Ltd., 2012)
Why ?
Dr. Ina Gerstberger │ 2014 3
The legal situation – Overview
� No uniform global definition of the term „natural“, e.g. in Codex Alimentarius:
- Sec. 5.1. (iii) Terms such as “natural” […] when they are used, should be in accordance with the national practices in the country where the food is sold. […]
� Only few countries worldwide have legal definitions of the term „natural“ in relation to products and/oringredients
� In the majority of countries assessment of the term „natural“ subject to individual decisions and/or legallynon-binding guidance
Dr. Ina Gerstberger │ 2014 4
The legal situation –How does it differ in various jurisdictions?
Dr. Ina Gerstberger │ 2014 5
The legal situation – EU (1)Existing legal provisions as to use of „natural“
� Nutrients/other substances according to the Annex of Regulation (EC) 1924/2006
- In this case it is allowed to advise the consumer that the relevant product is, for instance, a “natural vitamin C source”
Legal justification of an otherwise advertising with a self-evident fact
Dr. Ina Gerstberger │ 2014 6
The legal situation – EU (2)Existing legal definitions as to „natural“
Dr. Ina Gerstberger │ 2014 7
The legal situation – EU (3)Requirements as to a „natural“ production process
Dr. Ina Gerstberger │ 2014 8
The legal situation – EU (4)What applies to other, non specifically regulated areas of products and/or ingredients?
Prohibition of misleading claims
- for foodstuffs -
The labelling, advertising and presentation of food shallnot (…) mislead consumers
(Art. 16 Regulation (EC) 178/2002)
Food information shall not be misleading,
in particular as to characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin
or place of provenance, method of manufacture or production, or […]
by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics (…) ;
(Art. 7 (1) lit. a) and c) Regulation (EU) 1169/2011)
Dr. Ina Gerstberger │ 2014 9
The legal situation – EU (5) What is „misleading“ under EU law?
A commercial practice shall be regarded as misleading if
- it contains FALSE INFORMATION and is therefore UNTRUTHFUL OR in any way, including overall presentation, deceives or IS LIKELY TO DECEIVE the AVERAGE CONSUMER, even if the information is factually correct, […]
(cf. Art. 6 Directive 2005/29/EC)
- it omits material information that the average consumer needs, according to the context, to take an informed transactional decision
(cf. Art. 7 Directive 2005/29/EC)
and thereby causes or IS LIKELY TO CAUSE the average consumer to
take a transactional decision that he would not have taken otherwise.
Dr. Ina Gerstberger │ 2014 10
The legal situation - EU (6) Who is the one to assess on misleading claims?
Reasonably well-informed, observant and
circumspect average
consumer („The Intellectual“)
but as a corrective:
Consideration of „situation
specific attention“ (e.g. in Germany)
Social, cultural, linguistic factors may
enter into play to
define the presumed
expectations
It is sufficient if only a
part of the relevant publicis deceived
(„minority protection“)
If advertising is aimed at
a particular group of
consumers, the impact
has to be assessed from an average member of
the group
Dr. Ina Gerstberger │ 2014 11
The legal situation – EU (7) What characterises the “average reasonably well-informed, observant and circumspect consumer” in relation to its judgement of label claims?
� Consumers whose purchasing decision depends on the composition of the product will first read the list of ingredients (CJEU, C-51/94 Commission v Germany and C-465/98 D'arbo)
� Circumspect consumers may be deemed to know that even where a food is promoted as “naturally pure”, it is not free of any residues and pesticides (CJEU, C-465/98 D'arbo)
� The contamination of the environment of GMOs is a fact which canhardly be unknown to the average consumer (Advocate General Léger, C-132/03 – Codacons)
� The consumer does not buy a product irrespective of its characteristicsor because the product has been subject of widespread publicity(Advocate General Cosmas, C-385/96 – Goerres)
Dr. Ina Gerstberger │ 2014 12
The legal situation – UK (1)Criteria for the use of the terms […] natural in food labelling
Revised guidelines2008
Dr. Ina Gerstberger │ 2014 13
The legal situation – UK (2)Summary FSA labelling guidance
Dr. Ina Gerstberger │ 2014 14
The legal situation – UK (3) Examples from case law
� UK Advertising Standard Agency, Yoplait vs. Muller, 25 March 2009:
The ad: New Müller Little Stars. A helping hand from Mother Nature."
“All of which are pure and natural, so it's like getting a helping hand from mother nature“,
"100% natural ingredients".
The assessment: - Ad implied that the ingredients in Little Stars "were less processed and closer
to nature than they were".- Not „natural“ as the product contained gelatine, fruit concentrate and inulin as
well.
Dr. Ina Gerstberger │ 2014 15
The legal situation – France (1)DGCCRF, French Guidance Note No. 2009-136
� The term „natural“ may only be applied to food products
- that come directly from nature; and
are sold in a form produced by nature and are not significantly altered by mechanical processing (ingredients sliced, minced, peeled, ground, crushed, shelled, dried or pressed...).
Substances that have undergone a stabilization process, cooking, fermentation, pressing, roasting and infusion may only claim “(of) natural origin” rather than “natural” as such.
Dr. Ina Gerstberger │ 2014 16
The legal situation – France (2)Examples from case law (1)
� Decision of the Paris Court of Appeal from 18th May 2008
Milk products of SA Sociéte des laiterie Hubert
Triballat which were advertised with« RIANS 100% naturel, qui peut en dire autant,
« Recette 100% naturelle”
Misleading advertising due to the use of an additive in the products: The average consumer would actually expect a product “composed of
natural origin ingredients, without food additive or synthetically produced
substances” if “natural” is claimed.
Dr. Ina Gerstberger │ 2014 17
The legal situation – France (3)Examples from case law (2)
� Decision of the Supreme Court, Chambre Criminell from 1st February 2000, n° 99-80825
“100 % naturel” (for sports nutrition products)and “certificate by laboratories because of the purity
and efficacy”
Misleading because of the used production method applied on the ingredients used in the product (here: hydrolysis of proteins by enzymatic means) as well as due to the addition of vitamins and minerals.
Dr. Ina Gerstberger │ 2014 18
The legal situation – Germany (1)Examples from case law (1) – Product claims (purity)
� Administrative High Court of Baden-Württemberg, Judgement of 20 June 2013, docket no: 9 S 2883/11 –natural mineral water
While the average consumer expects mineral water to meet certain purity requirements that are already given by nature he does not know these purity requirements in particular and would therefore not expect an absolute purity.
The average consumer knows that pollutants can be found almost everywhere, including in such food which carries the purity designation “natural” or “bio” (also German Federal Court of Justice, judgement dated 13 September 2012, I ZR 230/11- Bio Mineral water).
19
The legal situation – Germany (2)Examples from case law (2) – Product claims (nature)
� Regional Court Hamburg, Judgement of 09 May 2008 -408 O 55/08
- The average consumer does not expect from the internet domain name “Bios-nature-pur.com” the trade of only completely untreated products. He knews that the processing of a soft drink requires more steps than the mere pressing of fruits. The consumer should however expect to receive a “natural product” which was the case here because the respective soft drinks traded contained exclusively certified organic flavours.
Dr. Ina Gerstberger │ 2014 20
The legal situation – Germany (3)Examples from case law (3) – Ingredient claims
� Court of Appeal Hamburg, Judgement of 29 August 2013, 3 U 12/12 - “natural lactic acid cultures”
- The consumer would only deem a substance as “natural” if it had been obtained from nature as it is used in the product rather than previously processing it in a laboratory where the biochemical, resp. genetic condition of the substance was modified through an enzymatic selection process.
- The German Food Law differentiates between “natural substances”, “substances of natural origin“ and substances that are “chemically identical to natural ones” (cf. § 2 para. 3 clause 2 no. 1 German Food and Feed Code).
- This indicates that a differentiated assessment in view of “nature-related advertisements” must be made for substances other than flavours.
Dr. Ina Gerstberger │ 2014 21
The legal situation –Overview on „the rest of the world“
USA Australia Canada Israel
Food Standards and
Labelling Policy Book
(USDA, 2005) for
meat and poultry
products („natural“ = no
artificial/syntheticingredient/chemicalpreservative + minimallyprocessed)
Food Descriptors
Guidelines, 2006
(quite similar to UK
guideline, but suggestionto include ‘contains no added food additives or artificial preservatives’ for further explanation of “natural”)
„Guide to Food
Labelling and
Advertising“, Method
of Production Claims,
Canadian Food
Inspection Agency
Labelling of Prepacked
Food Standard’, ‘Israeli
Standard SI 1145
§343 Food, Drug,
and Cosmetic Act:
‘Misbranded food’
(false or misleading
labelled food)
Trade Practices Act
prohibits misleading
advertising
Canadian Food and
Drugs Act, Food and
Drug Regulations,
the Consumer
Packaging and
Labelling Act
and Regulations etc.
Definitions on ‘natural
food product’, ‘natural
ingredients’ and
‘natural
like food ingredients’.
Dr. Ina Gerstberger │ 2014 22
The legal situation –Details for Canada
� A food or ingredient of a food that is represented as natural (“Nature", "natural", "Mother Nature", "Nature's Way“) is expected:
- not to contain, or to ever have contained, an added vitamin, mineral nutrient, artificial flavouring agent or food additive;
- not to have any constituent or fraction thereof removed or significantly changed, except the removal of water. For example: the removal of caffeine.
- not to have been submitted to processes that have significantly altered their original physical, chemical or biological state (Annex 1 and 2 lists minimum and maximum processes which affect the natural character of food)
- an additive may be a “natural ingredient” if the processes used to produce the food additive should not significantly alter its original, chemical, or biological state (but the food containing that ingredient may NOT be called “natural” -> only single ingredient foods may be labelled “natural”)
Dr. Ina Gerstberger │ 2014 23
The legal situation –Details for Israel
Natural food product
(NFP)
Natural ingredient Natural like ingredients
• not blended with other
foods,
• free of chemicals,
• processed with one or
several specified
processes (e.g.
mechanical and physical
processes, fermentation,
enzymatic treatments)
• allows some additional
processes compared to a
“NFP” like extraction,
reconstruction or
refining, provided no
chemicals are involved, or
chemical changes
induced.
• Ingredients may be
labelled as „natural
ingredient“ in the list of
ingredients if product
contains also other
ingredients, e.g. artificial
flavor)
• produced synthetically
and is identical in its
chemical formation and
content to the “natural
ingredient”
• labelling as “natural like
ingredient is only
allowed in the list of
ingredients
Dr. Ina Gerstberger │ 2014 24
The legal situation –Wrap up
� „Natural“ - high risk of being considered misleading
Only true for unprocessed or only mechanically treated foods (in
nearly all jurisdictions)
Standards of processing of ingredients which would still beconsidered „natural“ may vary from jurisdiction to jurisdiction
Use of processed ingredients may not allow for overall „naturalclaims“ also in relation to food as such, but views may likewise vary
subject to the „naturalness of the ingredients“ used
Overall tendency to rather use more nature specific wordings“ like
„of natural origin“, „nature-identical“ ingredients, made from „naturalingredients“ instead of using mere „natural“ claims
Dr. Ina Gerstberger │ 2014 25
www.wragge-law.com
Ingredients
Thank you for your attention !
Contact
Dr. Ina GerstbergerRechtsanwältin│DirectorHead of German Food & Drink/Life Sciences Sector Team
Wragge Lawrence Graham & Co LLP
Prinzregentenstraße 11a 80538 Munich
Email: [email protected]
www.wragge-law.com
This presentation does not replace any individual legal advice and should accordingly not
be made the sole basis for any decisions.
© Dr. Ina Gerstberger │ 2014 27