EU – Upcoming exemptions for traditional generic descriptors (which could imply an effect on health) from nutrition and health claims Regulation

The objective of the draft Commission Regulation EU providing derogations from Article 1(3) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council on nutrition and health claims made on food for the use of certain generic descriptors – which originally should have been adopted in the third quarter of 2018 – is to provide for a derogation from the provisions of Regulation (EC) No 1924/2006 on nutrition and health claims for certain generic descriptors traditionally used to designate specific class of foods, which could imply an effect on health but which have traditionally not been used to indicate a health effect and which are not understood by consumers in such manner.

In particular, and for generic descriptors listed in the Annex to the Regulation itself, the Regulation would provide for an exemption from the application of Article 1(3) of Regulation (EC) No 1924/2006 in accordance to which “A trade mark, brand name or fancy name appearing in the labelling, presentation or advertising of a food which may be construed as a nutrition or health claim may be used without undergoing the authorisation procedures provided for in this Regulation, provided that it is accompanied by a related nutrition or health claim in that labelling, presentation or advertising which complies with the provisions of this Regulation.”. These specific generic descriptors would be then exempted from the duty of being accompanied – for their legality – by a related nutrition or health claim compliant with Regulation (EC) No 1924/2006.

In particular and to give an example, as regards specifically Italy and rusk-type bakery products category, the generic descriptor “Biscotto salute” (in EN “Healthy Biscuit”) would be then exempted from the application of the above Article 1(3) of Regulation (EC) No 1924/2006. What said follows the application – submitted by Monviso S.P.A. pursuant to Article 1(4) of Regulation (EC) No 1924/2006 for the term “biscotto salute” to be used as generic descriptor in Italy and in Malta – provided on April 23rd 2015 by the Italian competent authority to the Commission.

As regard, instead, non-alcoholic carbonated beverage containing the bittering agent quinine in the form of the flavourings FL 14.011, FL 14.152 or 14.155 as referred to in the Union list of flavourings as laid down in Annex I to Regulation (EC) No 1334/2008, the wording “tonica” (used as part of the descriptive name of the beverage) will be exempted from the application of Article 1(3) of Regulation (EC) No 1924/2006. As a matter of fact on April 2nd 2015, the UK competent authority provided the Commission with an application from the British Soft Drinks Association for the term ‘tonic’ (in English) used as part of the descriptive name of a beverage in the form of ‘tonic water’, ‘Indian tonic water’ or ‘quinine tonic water’ and also substituting the word ‘tonic’ (in English) with ‘tonique’ (in French), ‘tónico’ or ‘tonica’ (in Italian, Spanish, and Portuguese), ‘tονωτικ?’ or ‘tonotikó’ (in Greek), ‘tonik’ (in Croatian, Czech, Hungarian, Polish, Slovak and Slovenian), ‘тоник’ (in Bulgarian), to be used as generic descriptor in all Member States except in Romania.

The same for hard and soft sweets based on sugars as well as sugar-free and calorie-reduced variants based on sweeteners (polyols and/or intense sweeteners) containing extracts of herbs, fruit or other plant substances, honey or malt: on November 18th 2015, the German competent authority provided the Commission with three applications from SOLDAN Holding + Bonbonspezialit?ten GmbH, Josef Mack GmbH & Co. KG and the Association of the German Confectionery Industry for the terms ‘Hustenbonbon’, ‘Hoestbonbon’, ‘rebucados para a tosse’, and ‘cough drops’, to be used as generic descriptors in Germany and in Austria (‘Hustenbonbon’), in the Netherlands (‘Hoestbonbon’), in Portugal (‘Rebucados para a tosse‘) and in the United Kingdom (‘Cough drops‘).

After a public consultation and the notification to the TRIS system of the EU Commission and to the WTO, the draft received a favorable opinion by the Standing Committee on Plants, Animals, Food and Feed – Section: General food law – on 22nd October 2018.

We are not certain about the date of publication yet, but the Regulation will enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

(see the original article on Foodlawlatest.com)

Cesare Varallo is food lawyer in Italy and global advisor on food safety, food labeling and food regulatory issues. In July 2013 he founded foodlawlatest.com and started his independent consultancy activity. Through partnerships with technical experts and other international advisors he can offer a multidisciplinary and multi-jurisdiction approach, to timely answer the needs of clients in a globalized environment and on 60 countries in the world.

He proudly works at the intersection between science, law, business and social studies, building bridges between different cultures, stakeholders and backgrounds.

He is a well recognized international speaker and author. He teaches food law related matters in several Universities, in particular LUISS in Rome, Alma Mater in Bologna and MSU in US.