97. All claims that are made on food must comply with general criteria laid out in the Regulation. Articles 3, 5, and 6 require that:
a) Claims are not false, ambiguous or misleading; authorisation of claims goes some way to guaranteeing this, but care is still needed over context and presentation.
b) Claims do not give rise to doubt about the safety and/or nutritional adequacy of other foods (Article 9 specifically addresses comparative nutrition claims).
c) Claims do not encourage or condone excess consumption of a food.
d) Claims do not state, suggest or imply that a balanced and varied diet cannot provide appropriate quantities of nutrients in general. Although there are provisions in place to adopt exemptions to this requirement, none currently exist.
e) Claims do not refer to changes in bodily functions which could give rise to, or exploit fear in the consumer, either textually or through pictorial, graphic or symbolic representations.
f) The presence, absence or reduced content in a food or category of food of a nutrient or other substance in respect of which the claim is made has been shown to have a beneficial nutritional or physiological effect, as established by generally accepted scientific evidence.
g) The nutrient or other substance for which the claim is made:
o Is contained in the final product in a significant quantity as defined in Community legislation or, where such rules do not exist, in a quantity that will produce the nutritional or physiological effect claimed as established by generally accepted scientific evidence. In the case of vitamins and minerals, Directive 90/496/EEC (as amended by Directive 2008/100/EC) refers to 15% of the RDA when considering what
constitutes a significant amount. In all other cases there should be evidence to show it has a benefit.
or
o Is not present, or is present in a reduced quantity so as to produce the nutritional or physiological effect claimed, as established by generally accepted scientific evidence. This will apply to claims such as “low fat” and “reduced fat”.
h) Where applicable, the nutrient or other substance for which the claim is made must be in a form that is available to be used by the body. It is not altogether clear how to interpret ‘where applicable’ in Article 5(1)(c). Reference to existing lists of compounds generally agreed to be
bioavailable may be a simple, effective way to demonstrate bioavailability without recourse to complicated testing that may be difficult to interpret. Lists of vitamins and minerals and of their sources that may be included in food supplements or in fortified foods are included in the European
legislation (Directive 2002/46/EC and Regulation 1925/2006 respectively) and recital 11 of 2002/46 and recital 10 of 1925/2006 state that the vitamin and mineral sources listed in the legislation have been assessed on the basis of safety and availability. So, in the case of a claim for a vitamin or mineral evidence of availability might be taken as read providing a
substance listed in the legislation is used. However, there may be
particular circumstances where this wording is relevant and helpful: certain dietary components exert their beneficial health effect by reducing the absorption of another component and are not themselves absorbed (e.g. plant sterols reduce blood cholesterol levels by reducing the absorption of dietary cholesterol from the gut) therefore they are not 'in a form that is available to be used by the body' in the same way that vitamins / minerals are.
i) Compliance with the specific conditions set for nutrition and health claims (Section 4 and 5 deal with this respectively) as the case may be;
j) If called upon to do so by the enforcement authorities a food business operator must be able to justify the claim. In some cases this may be by reference to the EU Register and use of references to generally accepted
scientific evidence, unless the scientific substantiation is subject to data protection. Food business operators will also have to show that the nutrient or other substance to which the claim relates is present in a significant amount and is available to be used by the body; and
k) Nutrition and health claims shall only be permitted if the average consumer can be expected to understand the beneficial effects as expressed in the claim.
98. The Regulation applies to the food ready for consumption in accordance with
manufacturers’ instructions (Article 5). In our opinion this should only apply where the food could not or should not be consumed otherwise. For example, the requirements of the Regulation would apply to a dehydrated product, only after water has been added in accordance with the instructions. Where the product can be consumed without following the manufacturer’s instructions, the requirements would apply to the food as sold. For example breakfast cereal does not have to be eaten with milk and therefore the claim should apply to the cereal as sold and not rely on milk being added.
99. You should also read the answers to frequently asked questions, which can be found in Section 9.9.