Post-Brexit: EFSA Health and Nutrition Claims – What Next?

Since Brexit, all health and nutrition claims approved for use by the European Food Safety Authority (EFSA) (up until December 31st, 2020) have been automatically adopted into UK law. Any new claims approved by EFSA after this date will not necessarily apply in the UK. 

Additionally, the UK regulatory body for health and nutrition claims has changed from EFSA to a new committee called the UK Health and Nutrition Claims Committee (UKNHCC) This committee will manage new claim applications submitted for approval in England, Scotland and Wales. The Great Britain Nutrition and Health Claims Register (GBNHC Register) will replace the EU Register. However, for the immediate future, Northern Ireland will still come under EFSA and the EU Register. 

The two registers (GBNHC and EU) are currently identical, but there will be differences in the future when new claims are approved separately by UKHNCC and EFSA. Remember that for foods marketed in GB (England, Scotland and Wales), only authorised claims from the UKNHC register can be used. For foods marketed in Northern Ireland and the EU, authorised claims must come from the EU register. It’s important to keep abreast of changes to both these registers particularly, if you are working on brands that are sold in GB and the EU. 

Game changer for Dietitians working on consumer brands, post BREXIT! 

Dietitians working with consumer brands have (to date) been walking a tight rope when it comes to article 12 (c) of the Nutrition and Health Claims Regulations, which many interpreted as strongly prohibiting brands being recommended by individual doctors or health professionals. 

However, recently published guidance notes prepared by the UK government have interpreted this piece of the legislation to mean that dietitians and nutrition professionals can recommend brands. This is a welcome game-changer and is a much-needed acknowledgment by the government of the important role that dietitians can play in helping to educate consumers to make healthier food choices. However, it isn’t entirely straightforward. 

In a nutshell, in GB markets, dietitians can recommend a branded product, but they cannot recommend a health claim on a product at the same time. Confusing? It is, even to experts working in this field, but hopefully these examples will help to clarify the position. 

“Dietitian X recommends brand Y” 

“This product has been developed by a leading dietitian” 

These 2 examples above are allowed because in each case a dietitian is recommending the brand but not making a health claim about it. 

“Dietitian X recommends brand Y, which is high in calcium and good for bones” 

“Dietitian X says calcium is needed for strong bones” in an ad including the product name of that supplement. 

“Developed with Dietitians, with calcium for strong bones” 

These 3 examples are illegal because here the dietitian’s endorsement (considered a claim in itself) is linked by a health claim (calcium for bones).  

Linking these 2 claims is seen under the legislation as a new claim, which has not been authorised for use and so is illegal. 

To be honest the guidance is still ambiguous and indeed the governments guidance’s notes reflects this when they say, “it might be difficult for a health professional to write about the relationship that exists between a food category, a food or one of its constituents and health without contravening the prohibition of Article 12 (c)”. 

Nonetheless, this new guidance is good news for dietitians, as it reinforces that the government considers that “experts in their fields like dietitians should be able to express their professional expertise and that the regulation on nutrition and health claims shouldn’t seek to hinder this”. Many dietitians would agree that they are the right nutrition experts to be recommending products (as opposed to unqualified ‘nutrition gurus’), but they must be mindful of the legislation as well as recognising that they are bound by their own professional codes of practice and conduct. 

Key takeaway: if you are a dietitian working in consumer branded communications… 

You can recommend a brand, but care is still needed

If the brand is making a health claim, you can still recommend the brand BUT your recommendation and any health claims being made about the product need to be separated in the communications.

The above information applies to foods marketed in England, Scotland and Wales

But as with all branded communication for consumers, context and final wording is important! If in doubt, seek advice from colleagues.