Understanding misleading marketing claims

02 August, 2018

There are currently no harmonised EU regulations for marketing claims made on food packages, which means that except for those markets which specifically regulate the use of the term ‘natural’ for example, this falls into a grey area of food labelling law. How can consumers have faith in food produced where no specific rules apply?

European food law states that the labelling of food products should not mislead the consumer under the following:

  • The EU’s General Food Law. This states that the “labelling, advertising and presentation of food or feed, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, shall not mislead consumers”.
  • The Food Information to Consumers Regulation. This states that a food label should not mislead consumers as to the characteristics of the food “in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production”.

However, according to the most recent report from BEUC, The European Consumer Organisation, the current EU focus is on the inappropriate use of terms that convey quality, such as ‘traditional’, ‘artisanal’ and other claims such as ‘natural’, which convey an impression of quality that could bear little or no relation to the product’s production process.

Examples of this include the use of pictures of fruit front of pack to market foods with little or no fruit content, as well as the use of the term ‘wholegrain’ for products containing very little whole grain.

In response to the BEUC report, the European Commissioner for Health & Food Safety, Vytenis Andriukaitis, has called upon EU member states to strengthen national controls on food labelling.

At present, only the use of the term ‘natural’ for flavouring is legislated at EU level and in international markets. As EU harmonised rules are not currently established for the claim ‘natural’ for finished products or for ingredients other than flavourings, some member states have issued guidance on this topic. The most well-known is the UK Food Standards Agency’s ‘Criteria for the use of the terms fresh, pure, natural etc. in food labelling’, which has been taken as a point of reference for later guides.

Just as there are no harmonised EU regulations on marketing claims, the same applies for international markets, where it is not directly regulated. There are only a few countries with specific rules for the use of ‘natural’. In South Korea, for example, the claim ‘natural’ can be used for foodstuffs that do not contain synthetic flavourings, colouring agents, preservatives or any other synthetic / or post-harvest-added synthetic components, as well as those that have not gone through additional processes, other than to remove non-edible parts or a minimum physical process.

Some countries have started to draft rules for the use of these quality terms. India has called for suggestions on the draft of the Food Safety and Standards (Advertisements and Claims) Regulation 2018, which also contains rules on quality terms.

Brazil has taken another approach to marketing claims. The National Health Surveillance Agency (ANVISA), which is the body responsible for controlling most foodstuffs in the country – with the exception of those controlled by the Ministry of Agriculture Livestock and Supply (MAPA) – advises that terms such as ‘natural product’, ‘pure’, ‘original’ and other similar claims must not be used, unless they are specifically permitted by individual technical regulations, as they can potentially mislead the consumer as to the true nature of the product. ‘Natural’ claims can still be made when regarding the use of flavouring, for example ‘natural flavour’.

Because there is lack of legislation across the globe, we conclude that where non-misleading provisions apply, assessment of the marketing claims must be done on case by case basis.

Please contact Leatherhead’s Global Regulatory Team for further information.