vitafoods marketing functional food to children

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…..


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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


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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.


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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)


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How to properly apply health claims targeted at children?

Obviously, this is not the way!


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How about the marketing of this US product for bone and brain support?


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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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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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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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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.


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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.


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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.


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Product / audience specific satellite codes:

• Food products

• Tobacco products

• Alcoholic beverages

• Children specific

Dutch Advertising

Code

Food

Alcohol

Children

Tobacco


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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


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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


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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.


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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.


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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

mailto:[email protected]

http://www.axonadvocaten.nl/