MARKETING FUNCTIONAL FOOD TO CHILDREN WITHIN THE EU
RESTRICTIONS & POSSIBILITIES
VitaFoodsGeneva, 11 May 2016Life Stages Theatre 16.15 PM
Karin Verzijden www.axonlawyers.com
Agenda
• Learning the WHO recommendations on the marketing of foods and non-alcoholic beverages to children
• Possibilities and restrictions from an EU perspective
• National self-regulatory practises for advertising at children and minors in the NL and other EU Member States
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Introduction Axon Lawyers
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• Amsterdam based law firm with international focus
• Fully dedicated to life sciences, familiar with food business
• Assisting high tech companies bringing innovative food products to the market
• International network through European Alliance of Life Sciences Law Firms
• Reporting current food law developments at blog FoodHealthLegal
WHO recommendations (1)
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Rationale recommendations 2010
• NCD’s represent a threat to human health and socioeconomic development.
• Unhealthy diet is a key modifiable risk factor for NCD’s.
• 2010: 42 million children < 5 overweight / obese.
• Risks of hypertension, insulin resistance and adult obesity.
• Heavy marketing of products high in fat, salt or sugar challenge efforts to eat healthily – thus…..
WHO recommendations (2)
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Purpose of Recommendations
• Promote responsible marketing of foods and non-alcoholic beverages to children and thereby
• Reduce impact of foods high in saturated fats, transfatty acids, free sugars or salt.
• Guide efforts of Member States in designing new and/or strenghtening existing policies on food marketing to children
2012: WHO follow-up by framework for implementation
WHO recommendations (3)
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Selection of Recommendations
# 2 Reduction of exposure of children to and power of marketing of foods high in saturated fats, transfatty acids, free sugars or salt.
# 5 Settings where children gather should be free from all forms of marketing of foods indicated under # 2.
# 12 Member States are encouraged to identify existing information on the extent, nature and effects of food marketing to children
Possibilities & restrictions in the EU (1)
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Regulation (1169/2011) on Food Information to Consumers
Food information
• shall not be misleading;
• shall be accurate, clear and easy to understand for the consumer;
• shall not attribute to any food the property of preventing, treating or curing a human disease.
Possibilities & restrictions in the EU (2)
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Claims Regulation 1924/2006 distinguishes between:
• general claims;• disease risk reduction claims;• claims referring to children’s development & health.
So far, 11 authorized claims aimed at children’s health regarding• DHA (3)• ALA & LA (1)• Calcium and/or Vitamin D (3)• Phosphorus (1)• Iodine (1)• Iron (1)• Protein (1)
Possibilities & restrictions in the EU (2)
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How to properly apply health claims targeted at children?
Obviously, this is not the way!
Possibilities & restrictions in the EU (3)
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How about the marketing of this US product for bone and brain support?
Possibilities & restrictions in the EU (4)
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Examples of claims & conditions of use
claim“Calcium and vitamin D are needed for normal growth and development of bone in children”
conditions of useProduct at stake should at least contain • 0,75 μg vitamin D and 120 mg calcium > food products
RI vitamin D: 5 μg RI calcium: 800 mgsignificant amount > 15 % for food
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Possibilities & restrictions in the EU (5)
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Examples of claims & conditions of use – continued
claim“Iron contributes to normal cognitive development of children”
condition of use product at stake should at least contain
• 1,05 mg iron > beverages
RI iron = 14 mgsignificant amount > 7.5% for beverages
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Possibilities & restrictions in the EU (6)
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Examples of claims & conditions of use – continued
claim“Phosphorus is needed for the normal growth and development of bone in children”
condition of useProduct at stake should at least contain • 105 mg phosphorus > food products
RI phosphorus = 700 mgsignificant amount > 15 % for food
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Possibilities & restrictions in the EU (7)
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Food for Special Groups Regulation (609/2013) as per 20 July 2016
• general requirements on allowed substances > Union List• additional requirements for infant and follow-on formula
Infant: child < 12 months
Infant formula: food intended for use by infants satisfying all nutritional requirements until introduction of appropriate complementary feeding
Follow-on formula: food intended for use by infants upon introduction of appropriate complementary feeding, constituting the principal liquid element in a progressively diversified diet.
Possibilities & restrictions in the EU (8)
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Additional requirements for infant and follow-on formula
• Labelling, presentation and advertising shall be designed so as not to discourage breast feeding.
• Labelling, presentation and advertising shall not include pictures of infants (or other images) which may idealise such formulae.
• However, graphic representation for easy identification of these products and for illustrating methods of preparation are permitted.
• Not easy to combine these requirements!
National self-regulatory practises (1)
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The Dutch Advertising Authority
• Private body created in the ‘60-ies by advertising industry (Cf. Deutsche Werberat in Germany or Advertising Standards Authority in UK).
• Promotes sensible and responsible advertising in the NL, so that consumers can trust commercials and keep on trusting them.
• Offers a toolkit putting this to practice for various fields including food.
• Handles complaints from companies and consumers at 2 levels: (1) Advertising Code Committee (2) Board of Appeal - no exclusion of other legal means.
National self-regulatory practises (2)
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International context
• Dutch Advertising Authority member of the European Advertising Standards Alliance, just like many other EU self-regulatory bodies. “We love advertising so much, sometimes we have to restrain it”
Financing
• Contributions made by organisations committing to Advertising Code.• 0,025 % of media budget > 1 € million with maximum of € 30K.
Enforcement
• Recommendation not legally enforceable, but in practise usually (96%) applied.
• Compliance dept. communicates with Authority for Consumers & Markets based on cooperation protocol.
National self-regulatory practises (3)
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Product / audience specific satellite codes:
• Food products
• Tobacco products
• Alcoholic beverages
• Children specific
Dutch Advertising
Code
Food
Alcohol
Children
Tobacco
National self-regulatory practises (4)
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Advertising Code for Children
• Advertising targeted at children should not be misleading
• To protect children from physical / moral harm, advertising should not
• Push them to by any product by taking advantage of their inexperience and gullibility
• Directly push their parents to buy a specific product• Take advantage of the confidence children have in parents &
teachers• Show children in dangerous situations
National self-regulatory practises (5)
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Advertising Code for Food Products
Not allowed: No advertising of food products for children < 12
• in media generally targeted at < 12 years.• using children’s idols.• in schools (including sampling)
Allowed: advertising of food products for children < 12
• in cooperation with public authorities• on POS materials and packaging• advertising targeted at children between 7 - 12 years
meeting certain nutritional criteria and portion sizes
National self-regulatory practises (6)
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Advertising Code Committee 3 July 2014Supermarket vouchers for Dutch treats
• Teacher distributes vouchers for millefeuilles and ice cream during Dutch King’s Day (27 April).
• Violation of Children’s Advertising Code and of Advertising Code for Food Pr Products:
• abuse of confidence inspired by teacher.• sampling of food products not allowed in school.
NB Sponsoring under certain conditions allowed based on private – public partnership.
National self-regulatory practises (7)
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Is self-regulation effective enough?
YES• Dutch Federation of Food Industry (FNLI) considers it is. • Age limit for prohibition of food marketing was raised from 7 12• Do not just protect children, but also teach them to navigate in real life.
NO• Counter-initiatives by organisations like Foodwatch (also active in UK
and in France).• Example: Alliance Stop Children Marketing fights marketing for
unhealthy products aimed at children.• City of Amsterdam (1/5 children overweight) joined this Alliance on
1 October 2015.
National self-regulatory practises (8)
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ASA Ruling on Nestlé UK Ltd 23 December 2015Nesquick bunny
• Ad on ASDA’s own brand milk labels featured Nesquick bunny stearing cup of hot choclate.
• Text included: For a great start to the day! Nutri-start Vit D Zinc Iron complementing milk.
• Children’s Food Campaign challenged i.a. that combination of bunny + claim encouraged poor nutritional habits in children.
• ASA perceived claim as referring to general health benefit > only allowed if combined with specific health claim.
• Claims upheld, now that product high in added sugar was promoted as suitable breakfast option.
C Take home
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A
• Health claims in the EU have a specific legal regime.
• Nutrient requirements for EU health claims are strictly regulated. Contrary to DRR claims, children specific claims do not allow flexibility.
• In addition to EU legal and regulatory requirements, self-regulation plays important role in several Member States. These offer both restrictions & opportunities.
Karin Verzijden [email protected] Advocaten www.axonlawyers.com
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