L AW J OURNAL Analyzing the Laws, Regulations, and Policies - PDF document

F OOD AND D RUG L AW J OURNAL Analyzing the Laws, Regulations, and Policies Affecting FDA-Regulated Products European Union Food Labeling and Packaging: The Need to Strike a Balance John Felce FDLI V OLUME 63 N UMBER 1 2008

E UROPEAN U NION F OOD L ABELING AND P ACKAGING 2008 113 European Union Food Labeling and Packaging: The Need To Strike A Balance J ON F ELCE * I. I NTRODUCTION One of the most thought-provoking and controversial issues of 2004 was the Academy-award nominated film “Super Size Me,” in which its director and star, Morgan Spurlock, lived for 30 days on food from McDonalds for his three daily meals. In part, the success of this film in capturing the public’s imagination was a reflection of increased public interest in health and diet. Food producers and retailers have not been slow to react to this trend, and sophisticated nutrition and health claims in the advertising, labeling and presentation of foods have become widespread. Since July 1, 2007, European Union (EU) legislation on nutrition and health claims has applied in the EU, with the aims of harmonizing such claims across the current 27 EU member states and providing a framework to ensure consumers are not misled. This has been merely part of the desire for increased consumer information, driven as much by regulations as by food producers, retailers and consumers them- selves. In the EU, there is now an extensive food labeling regime, covering not just the information necessarily required to be present on labels, but establishing rules for information voluntarily provided (including the above-mentioned new legisla- tion on nutrition and health claims) and the manner in which all such information is presented. This area of law is continuing to evolve and is currently the subject of a review by the European Commission. This trend toward increased labeling and information for consumers has been mirrored by potentially conflicting moves to curb excessive packaging and packag- ing waste. EU legislation has established various targets and objectives with the aim of reducing the impact of packaging and packaging waste on the environment, in particular in connection with its impact on landfill. In recent months, various further initiatives have been proposed and the desire for a more environmentally- friendly society shows no signs of abating. This article looks at these concurrent movements, in particular with reference to the United Kingdom (UK), and suggests that a delicate balance needs to be maintained between them. II. H EALTHY L IVING Healthy living has become one of the watchwords of the new millennium, driven by government policy, consumer demand and food producers. A particular corner- stone of this trend has been the promotion of healthy eating in recognition of the importance of diets in (among other things) reducing coronary heart disease and obesity while increasing quality of life and worker productivity. For example, it was estimated that by 2000 obesity was costing the UK approximately £2.5 billion annually, comprising £480 million incurred in treating obesity and its associated diseases and a £2 billion loss in productivity 1 . The actual cost to the economy of * Mr. Felce is an Associate in the London office of the international law firm Jones Day where he is a member of the firm’s litigation department. The views are the author’s and do not necessarily reflect those of Jones Day law firm. 113

114 F  D L J V. 63 poor diet is likely to be significantly higher, as this estimate did not account for other diet related illness and death or the monetary value of pain, grief and suf- fering associated with all diet related conditions. As the drive toward healthy living continues apace, the public has become increas- ingly inundated with nutritional information and health claims. Healthy option brands have become particularly fashionable, and it was estimated that in 2003 some 4,250 products on the market with a value of over £1 billion were described as such. 2 Similarly, the UK Food Standards Agency introduced the concept of “traffic light labeling,” which flags whether the amount of particular nutrients in a portion or serving of food is healthy. The merits of individual ingredients, min- erals and vitamins are now often the sole focus of marketing campaigns, a recent example being a campaign concerning Birds Eye Fish Fingers about Omega-3 fatty acids (Omega-3 is said to maintain heart health). Similarly, Flora introduced Flora Omega-3 Plus margarine, which claimed to contain more Omega-3 fatty acids than any other spread. While certain ingredients, minerals and vitamins have become fashionable, others such as saturated fat and salt are less so. Last year, Ofcom, which regulates UK communications, announced that all advertisements for foods that are high in fat, salt and sugar (HFSS) will be removed from all programs holding particular appeal for children up to the age 16. This has been followed by a Television Advertising (Food) Bill in the UK House of Lords which would cover all television advertise- ments before 9 p.m., 3 as well as preventing sponsorship of pre-watershed programs by HFSS products to prevent such advertisements attracting children up to the age 16 to HFSS products. Food producers have also joined in on this bandwagon, and their marketing campaigns often emphasize the reduction or removal of items such as saturated fat and salt, as highlighted by the snack company Walkers in 2007, when it re-launched its snack brands with less saturated fat and salt. III. N UTRITION AND H EALTH C LAIMS R EGULATION In this context of healthy living, consumers have been increasingly flooded with nutrition and health claims such as “high in polyunsaturates, low in saturates” and “calcium helps build strong bones”. While a feature of EU policy has been to in- crease consumer choice by providing the public with sufficient information to make an informed decision, this has been accompanied by a need to ensure consumer protection from erroneous, misleading, confusing and unhelpful nutrition and health claims, not least in an environment in which consumers take more interest in what they are eating (and hence the labels of the food products they purchase). Although existing European legislation requires adequate and effective means to control false and misleading advertising, including provisions under which per- sons or organizations can take legal action against such advertising and/or bring it before an appropriate authority (which can itself make a decision concerning the complaint or initiate legal proceedings), this was deemed insufficient. It was suggested that harmonizing legislation was needed at the European level to prevent misleading nutrition and health claims specifically, before such claims were made and then contested. This was particularly the case as some EU member states had adopted measures (including new legislation) to regulate the use of nutrition and 1 2000 figure from the National Audit Office 2001: “Tackling Obesity in England”. 2 British Retail Consortium figure. 3 This is known as ‘the watershed.’