EU Health Claims Regulation and the Marketing of Functional Foods: A Regulatory Void?

Abstract

This report evaluates the current regulatory regime for health claims in the EU on the basis of a case study of the marketing of Optimal Control, a yoghurt drink which was marketed in several EU member states as a functional food aimed at suppressing appetite and maintaining weight control. Our case study of the marketing of Optimal Control in the Netherlands reveals that the use of non-textual marketing claims was much more important than the use of textual health claims. Because the current EU regulatory regime emphasizes the evaluation of the wording of health claims, but lacks an evaluation of non-textual claims we conclude that there is a regulatory void that producers can use to market their products in ways that suggest more health effects than scientifically warranted. As a result the protective effect of the current EU regulatory regime on health claims is less strong than what legislators may have intended. While it might seem most logical to simply expand EFSA’s remit by also letting it look at non-textual claims, we argue that a better solution to close this gap is through a stricter monitoring of unfair commercial practices at national level.

Keywords: EU, EFSA, functional foods, regulation, optimal, health claims, advertising

JEL Classification: K32, L66, I18