The presence of such foods within a single European market of 28 member states, and the importance of food to the success of the EU-US TTIP trade talks, makes this subject even more complex.
The issue of functional foods was discussed in a round table format, with representatives of the state regulator, consumers’ bodies, producers and retailers all being able to set out their points of view.
Joanna Krakowiak and Dr Ewa Butkiewicz from Wardyński & Partners law firm set out the legal environment in which manufacturers and retailers need to operate. The concept of ‘functional food’ is linked in EU Directives to ‘novel foods’, which did not exist prior to 1997.
A functional food can include foods for particular nutritional use (PARNUTs) which refer to specifically formulated foods which are consumed to meet special dietary requirements. Available PARNUT foods include infants and follow-on formula; weaning foods - including processed cereals-based food and baby foods for infants and young children; FSMPs - dietary foods for special medical purposes; slimming foods - food intended for use in energy-restricted diets for weight reduction; sports foods - foods intended to meet the expenditure of intense muscular efforts, especially for sports people. A functional food can also include fortified foods. Another example of health promoting-foods can be a group of food supplements.
New groups – such as those tackling genetic disorders or using nanotechnology will also become increasingly visible.
Single European market – in theory regulates functional foods with different regulations and Directives, but it is difficult for food producers and retails to cope with the different local guidelines that exist from market to market. Food labelling regulations have been subject to change in recent years, and the introduction of genetically modified foods (GMOs) into processed foods is one example.
Self-regulation was the norm across EU countries until the 1980s; since then there has been an ever-increasing amount of regulation being imposed – to protect the consumer and the environment, to foster fair trade.
EU regulation focuses on risk assessment and on traceability of food products from field to fork. Proportionality is another important doctrine at the heart of the regulatory regime. A mix of authorisation (based on a technical dossier assessing risk), notification and acceptance of producer’s responsibility is required.
Genetically modified – yes or no?
When it comes to GMOs, the situation in the EU is complex. Eight member states have said ‘no’ to GMOs, a further 13 want change to the current regulations. In the case of Poland, it was ‘no because no’ – a political and emotional reflex. The European Commission is currently reviewing the decision making process on GMOs. Each member state has the right to opt out and to limit or ban GMOs on its own market. Yet each member state is also a member of the World Trade Organisation, and the US and many Latin American countries are large-scale exporters of GMOs. In the case of Argentina, 100% of its soya crop is GMO, while in Brazil, the figure is around 90%.
And objections from a member state to the introduction of GMOs into its market must be based on qualified academic research, rather than knee-jerk emotional reaction. So the EU has reached a compromise. As a whole, the EU says ‘yes’ to GMOs’, but each individual member state has the right to say ‘no’ – providing it has a good reason to do so. The EU has therefore listened to the people, not imposing top-down regulation in such an emotionally charged subject.
What’s a food supplement, and what’s a medicine?
The Chief Sanitary Inspector is responsible for verification of notifications on PARNUTs, fortified foods and food supplements. When performing the procedure to clarify that a foodstuff subject to notification does not meet the requirements for a medicinal product laid down by the pharmaceutical law, or a medical device within the meaning of the regulations on medical devices, the Chief Sanitary Inspector shall oblige the operator to submit an opinion of the Office for Registration of Medicinal Products, Medical Devices and Biocidal Products.However, many products are currently “PWT” – (proceeding in progress) – or case pending, where the producer is waiting for a definitive green light from the regulator, but in the meanwhile is free to sell the product.
Information given on a label comes in two sorts – obligatory and voluntary. If the contents of GMO within the product constitutes less than 0.9%, there is no need to mention it on the label.
A broader discussion focused around consumers’ understanding of claims. Some are educated and aware, others can be considered vulnerable. The cases heard in Polish courts of claims made by producers of UHT milk or Basmati rice highlight the need for consumer awareness.
Dr Daniel Radva from Tesco explained the retailer’s approach to innovation. Last December, Tesco launched its European innovation centre in Kraków, developing own-brand products, testing them on consumers, working on packaging, artwork and labelling. At the heart of the process is the customer, said Dr Radva; everything must be safe, legal and of high quality, meeting Tesco’s food manufacturing standard.
Tesco’s innovation centre cooperates with universities and R&D institutes, as well as with producers. The prevention, management and treatment of chronic diseases of the modern age is crucial to the concept of functional food, which must be food for everyday life, not a powder or a capsule. The active ingredients come from oat, soy, barley, linseed, yellow and blue fruits, vegetables, tea, red wine and berried fruits. Then there are categories such as probiotics, gluten-free or lactose-free foods for people with allergies or requiring special diets. Although claims are made for such products, there is a general lack of knowledge of definitions
Functional products can consist of decreased or fortified nutritional components; the balance needs to be accurate and customer-friendly information has to be conveyed on the label.
Tesco draws on consumer insights from market research companies such as Nielsen, DunnHumbey and Mintel. Mintel, for example, buys every new product as it comes onto the market; the claims made for the products are analysed and consumers asked whether or not they believe the claim – indeed, whether they even understand the claim.
The presentations were followed by questions from participants. Good points were raised by representatives of the Polish consumers’ federation, the chief sanitary inspectorate (GIS), and the Warsaw University of Life Sciences (SGGW). The concept of labelling products with traffic lights (red/amber/green) depending on the recommended daily intake of each nutritional element is still not entirely understood by consumers, especially when it comes to combining more than one such product in one’s diet. There is also a lack of awareness as to what is meant by a ‘sustainable diet’. Many consumers mistake it with ‘balanced diet’ (this may be due to the erroneous translation of the word ‘sustainable’ into Polish as ‘zrównoważnony’, when the word in English means ‘able to be maintained at a certain level’.
The practicalities of the single European market and free trade within EU were discussed, in particular in the context of REFIT, the European Commission’s drive to bring more simplicity to current regulations.
With evolving knowledge of medical and scientific risk, the consumer view – which is central to EU Directives – is also changing. Ten years ago, consumers sought safety above all, now they are looking at the value added and the benefits that novel nutritional elements can provide, in particular the 55+ age group. However, there is concern that advertising may be like ‘greenwashing’ that made products look more environmentally friendly than they are. Consumers expect that claims have to be scie