So, the European Parliament voted to scrap the “nutrient profiles.” Consumer advocates and Nestlé reacted with disappointment and disbelief. They insisted that the vote should not distract the Commission even further. [I] The profilers contend that by “profiling” foods consumers can be nudged to consume less “undesirable” nutrients, such as sugar, salt and fat. Above all, “undesirable” foods must not bear nutrition or health claims.
The alleged health risk against which the Nutrition and Health Claims Regulation (NHCR) should protect consumers was originally formulated by consumer advocates as the risk that “undesirable” foods “would become more attractive because of the way in which they will be labelled and advertised and many consumers that are currently eating them in moderation would consume them in greater quantities.”
In 2003, in the Explanatory Memorandum that accompanied the proposal for the NHCR, the European Commission duly reported that “[s]ome consumer organisations in the European Union consider that products that do not have a ‘desirable’ nutritional profile, such as candies, high salt and high fat snacks or high fat and sugar biscuits and cakes should not be allowed to bear claims.” The consumer advocates and some Member States had argued that consuming greater than moderate quantities of “undesirable” foods “would have a more immediate negative effect on the dietary habits of certain particularly vulnerable sections of the population, like children and adolescents.” [II]
In the Memorandum, the Commission correctly observed that “[t]he concept of prohibiting the use of claims on certain foods on the basis of their ‘nutritional profile’ is contrary to the basic principle in nutrition that there are no ‘good’ and ‘bad’ foods but rather ‘good’ and ‘bad’ diets. Nutritional advice certainly recommends judicious food choices and moderation in consumption of certain products but accepts that, in a long-term varied diet, all foods could be included in appropriate frequency and quantities.” [III]
However, true to its political nature, the Commission side-tracked its own argument by stating that “…, although scientifically valid, [it] should be considered in the appropriate context. Foods baring claims are presented by the food operators as products whose consumption would provide a benefit, that is as ‘good’ or ‘better’ products. In most cases, influenced by the promotional campaigns, consumers perceive them as such. This potential bias should be avoided in order to prevent the [aforementioned] negative effects […]. Therefore some restrictions on the use of claims on foods based on their nutritional profile should be foreseen.” [IV]
Indeed, the concept of prohibiting the use of claims on “undesirable” foods is contrary to the scientifically valid basic principle in nutrition that there are no “good” or “bad” foods.” But, apparently, such a prohibition becomes relevant when it is lifted out of the context of nutritional science and placed in another appropriate though rather hypothetical context. According to the Commission, that “appropriate context” arises where consumers would not only be exposed to judicious “nutritional advice” but also to “promotional campaigns” for “undesirable” foods bearing claims. Not that the claims would make these foods unsafe, but consumers, who would perceive them as good or better than “undesirable” foods not bearing claims, might develop bias and “many of them who are currently eating them in moderation might consume them in greater quantities.”
Bias is commonly defined as a particular tendency or inclination, especially one that inhibits impartial judgment or consideration of an issue. Now, let’s suppose that a consumer could choose between regular candies and candies with added vitamins. He would not be suspected of bias if he would – impartially and quite correctly – consider the candies with vitamins as better or less “undesirable” than the regular candies. So, what might be the bias that the Commission fears so much ?
Most likely, this is the inclination aroused by promotional campaigns that would affect consumers’ mental capacity to impartially consider the nutritional advice not to use beyond moderation “undesirable” foods with claims. Consumers, at least “many of them,” would no longer follow nutritional advice. Instead of providing consumers the nutritional advice that they should not indulge in “undesirable” foods just because they bear claims, the Commission and the consumer advocates chose to prevent the risk of bias by depriving all consumers of all nutrition and health claims on “undesirable” foods. So, we’re not discussing foods per se. We’re discussing consumer behaviour and the alleged risk that claims on “undesirable” foods would have a more immediate negative effect especially on the dietary habits of certain particularly vulnerable sections of the population. How this negative effect would play out is cloaked in the well known speculations about the usual culprits.
In its Explanatory Memorandum, the Commission warns: “In particular, the amount of total fat, saturates, trans fatty acids, sugars, sodium or salt, at variable levels, are commonly cited as criteria for the ‘nutritional profile’ of products. Scientific research identifies an association between the high consumption of these nutrients and some chronic diseases, such as cardiovascular disease, diabetes, several types of cancer, obesity, osteoporosis and dental disease. More complicated schemes involving many more parameters may be under study. But all these proposals are currently far from meeting with the required consensus. Therefore it would be appropriate that such criteria and any relevant exceptions that should apply in the Community be adopted after careful and adequate consideration of the matter but within reasonably short time limits.” [V]
However, these effects of “undesirable” components of foods on human health is not what the prohibition of claims on “undesirable” foods is about. We’re definitely not discussing the epidemiological effects of a “high consumption” of “undesirables.” We’re discussing the potential risk that consumers might consume “undesirable” foods beyond moderation if such foods would bear claims. We’re considering the argument that consumers, when exposed to foods that should “desirably” be consumed in moderation, would eat more of these foods when they’re accompanied by nutrition or health claims. It is this hypothetical difference between moderate quantities and greater than moderate quantities and the possible effect of this difference on human health, that should be assessed.
In fact, the discussion doesn’t even concern the “undesirability” of foods, since everyone seems to agree that their consumption “in appropriate frequency and quantities” does not pose a risk to health. Neither does this discussion concern the safety of “undesirable” foods or foodstuffs. As the Commission correctly observed, nutritional advice accepts that, in a long-term varied diet, all foods, including foods with an “undesirable” nutrient profile, could be included. If such foods were unsafe, they would not have been placed on the market in the first place.
This discussion concerns “undesirable” consumer behaviour and consumer choice. The consumer advocates aren’t profiling foods or nutrients, they are profiling consumers as stupid, credulous, prone to bias or somehow incapable of sticking to the advocates’ nutritional advice when exposed to foods bearing truthful nutrition or health claims. The advocates want to make sure that consumers behave in ways desired by the advocates.
The Claims Regulation rests essentially on the argument that, irrespective of an assessment of their truthfulness and beneficiality, nutrition and health claims on “undesirable” foods will produce an uncertain risk of harm to human health. However, “undesirable” foods that comply with nutrition labeling requirements, such as declarations of “undesirable” ingredients (alcohol, salt, unsaturated fats, trans-fatty acids and sugar), are non-hazardous and safe. Their injuriousness can only stem from abnormal use, not intended, implied, suggested or proposed by the food’s manufacturer or retailer.
Article 5 of the NHCR provides that it is the responsibility of the manufacturer who uses a health claim to integrate EFSA’s/EU’s ingredient-based conditions of use and the related health claim in a final – ready for consumption – product by seeing to it that:
“(b) the nutrient or other substance for which the claim is made:
(i) is contained in the final product in a significant quantity as defined in Community legislation or, where such rules do not exist, in a quantity that will produce the nutritional or physiological effect claimed as established by generally accepted scientific evidence;”
and that
“(d) the quantity of the product that can reasonably be expected to be consumed provides a significant quantity of the nutrient or other substance to which the claim relates, as defined in Community legislation or, where such rules do not exist, a significant quantity that will produce the nutritional or physiological effect claimed as established by generally accepted scientific evidence;”
In this regard, it is up to the manufacturer to see to it that final (finished) products shall be safe when used according to the instructions concerning the products’ intended normal use. Quite clearly, when establishing and formulating the intended normal use for a final product, the manufacturer considers and establishes the product’s – absolute – safety. Arguably, use of a final product could become unsafe or “undesirable” when the product is used “to excess,” i.e. in quantities that greatly exceed those laid down in the product’s intended normal use instructions. However, this does not make the product unsafe. It makes a product’s excess abuse potentially unsafe or “undesirable.”
In light of this, Article 10.2 of the NHCR provides that “health claims shall only be permitted if the following information is included in the labelling, or if no such labelling exists, in the presentation and advertising:
(a) a statement indicating the importance of a varied and balanced diet and a healthy lifestyle;
(b) the quantity of the food and pattern of consumption required to obtain the claimed beneficial effect;
(c) where appropriate, a statement addressed to persons who should avoid using the food; and
(d) an appropriate warning for products that are likely to present a health risk if consumed to excess.”
When applied to “undesirable” foods, this should provide sufficient openings for manufacturers of “undesirable” foods to inform consumers that, although the food in question may be consumed as part of a long-term varied diet in appropriate – moderate – frequency and quantities, the fact that this food bears a health claim does not suggest that it should be consumed in excess of judicious nutritional advice.
So, the European Parliament was right. Let’s shred the nutrient profiles.
Bert Schwitters
[I] http://www.nutraingredients.com/Regulation-Policy/European-Parliament-votes-to-scrap-nutrient-profiles
[II] See par.13 of the Proposal for a Regulation on nutrition and health claims made on foods; Brussels, 16.7.2003; COM(2003) 424 final 2003/0165 (COD)
[III] See par.14 of the Proposal for a Regulation on nutrition and health claims made on foods; Brussels, 16.7.2003; COM(2003) 424 final 2003/0165 (COD)
[IV] See par.14 of the Proposal for a Regulation on nutrition and health claims made on foods; Brussels, 16.7.2003; COM(2003) 424 final 2003/0165 (COD)
[V] See par.14 of the Proposal for a Regulation on nutrition and health claims made on foods; Brussels, 16.7.2003; COM(2003) 424 final 2003/0165 (COD)
The Undesirable Nutrient Profiles
So, the European Parliament voted to scrap the “nutrient profiles.” Consumer advocates and Nestlé reacted with disappointment and disbelief. They insisted that the vote should not distract the Commission even further. ([i]) The profilers contend that by “profiling” foods consumers can be nudged to consume less “undesirable” nutrients, such as sugar, salt and fat. Above all, “undesirable” foods must not bear nutrition or health claims.
The alleged health risk against which the Nutrition and Health Claims Regulation (NHCR) should protect consumers was originally formulated by consumer advocates as the risk that “undesirable” foods “would become more attractive because of the way in which they will be labelled and advertised and many consumers that are currently eating them in moderation
would consume them in greater quantities.”
In 2003, in the Explanatory Memorandum that accompanied the proposal for the NHCR, the European Commission duly reported that “[s]ome consumer organisations in the European Union consider that products that do not have a ‘desirable’ nutritional profile, such as candies, high salt and high fat snacks or high fat and sugar biscuits and cakes should not be allowed to bear claims.” The consumer advocates and some Member States had argued that consuming greater than moderate quantities of “undesirable” foods “would have a more immediate negative effect on the dietary habits of certain particularly vulnerable sections of the population, like children and adolescents.” ([ii])
In the Memorandum, the Commission correctly observed that “[t]he concept of prohibiting the use of claims on certain foods on the basis of their ‘nutritional profile’ is contrary to the basic principle in nutrition that there are no ‘good’ and ‘bad’ foods but rather ‘good’ and ‘bad’ diets. Nutritional advice certainly recommends judicious food choices and moderation in consumption of certain products but accepts that, in a long-term varied diet, all foods could be included in appropriate frequency and quantities.” ([iii])
However, true to its political nature, the Commission side-tracked its own argument by stating that “…, although scientifically valid, [it] should be considered in the appropriate context. Foods baring claims are presented by the food operators as products whose consumption would provide a benefit, that is as ‘good’ or ‘better’ products. In most cases, influenced by the promotional campaigns, consumers perceive them as such. This potential bias should be avoided in order to prevent the [aforementioned] negative effects […]. Therefore some restrictions on the use of claims on foods based on their nutritional profile should be foreseen.” ([iv])
Indeed, the concept of prohibiting the use of claims on “undesirable” foods is contrary to the scientifically valid basic principle in nutrition that there are no “good” or “bad” foods.” But, apparently, such a prohibition becomes relevant when it is lifted out of the context of nutritional science and placed in another appropriate though rather hypothetical context. According to the Commission, that “appropriate context” arises where consumers would not only be exposed to judicious “nutritional advice” but also to “promotional campaigns” for “undesirable” foods bearing claims. Not that the claims would make these foods unsafe, but consumers, who would perceive them as good or better than “undesirable” foods not bearing claims, might develop bias and “many of them who are currently eating them in moderation might consume them in greater quantities.”
Bias is commonly defined as a particular tendency or inclination, especially one that inhibits impartial judgment or consideration of an issue. Now, let’s suppose that a consumer could choose between regular candies and candies with added vitamins. He would not be suspected of bias if he would – impartially and quite correctly – consider the candies with vitamins as better or less “undesirable” than the regular candies. So, what might be the bias that the Commission fears so much ?
Most likely, this is the inclination aroused by promotional campaigns that would affect consumers’ mental capacity to impartially consider the nutritional advice not to use beyond moderation “undesirable” foods with claims. Consumers, at least “many of them,” would no longer follow nutritional advice. Instead of providing consumers the nutritional advice that they should not indulge in “undesirable” foods just because they bear claims, the Commission and the consumer advocates chose to prevent the risk of bias by depriving all consumers of all nutrition and health claims on “undesirable” foods. So, we’re not discussing foods per se. We’re discussing consumer behaviour and the alleged risk that claims on “undesirable” foods would have a more immediate negative effect especially on the dietary habits of certain particularly vulnerable sections of the population. How this negative effect would play out is cloaked in the well known speculations about the usual culprits.
In its Explanatory Memorandum, the Commission warns: “In particular, the amount of total fat, saturates, trans fatty acids, sugars, sodium or salt, at variable levels, are commonly cited as criteria for the ‘nutritional profile’ of products. Scientific research identifies an association between the high consumption of these nutrients and some chronic diseases, such as cardiovascular disease, diabetes, several types of cancer, obesity, osteoporosis and dental disease. More complicated schemes involving many more parameters may be under study. But all these proposals are currently far from meeting with the required consensus. Therefore it would be appropriate that such criteria and any relevant exceptions that should apply in the Community be adopted after careful and adequate consideration of the matter but within reasonably short time limits.” ([v])
However, these effects of “undesirable” components of foods on human health is not what the prohibition of claims on “undesirable” foods is about. We’re definitely not discussing the epidemiological effects of a “high consumption” of “undesirables.” We’re discussing the potential risk that consumers might consume “undesirable” foods beyond moderation if such foods would bear claims. We’re considering the argument that consumers, when exposed to foods that should “desirably” be consumed in moderation, would eat more of these foods when they’re accompanied by nutrition or health claims. It is this hypothetical difference between moderate quantities and greater than moderate quantities and the possible effect of this difference on human health, that should be assessed.
In fact, the discussion doesn’t even concern the “undesirability” of foods, since everyone seems to agree that their consumption “in appropriate frequency and quantities” does not pose a risk to health. Neither does this discussion concern the safety of “undesirable” foods or foodstuffs. As the Commission correctly observed, nutritional advice accepts that, in a long-term varied diet, all foods, including foods with an “undesirable” nutrient profile, could be included. If such foods were unsafe, they would not have been placed on the market in the first place.
This discussion concerns “undesirable” consumer behaviour and consumer choice. The consumer advocates aren’t profiling foods or nutrients, they are profiling consumers as stupid, credulous, prone to bias or somehow incapable of sticking to the advocates’ nutritional advice when exposed to foods bearing truthful nutrition or health claims. The advocates want to make sure that consumers behave in ways desired by the advocates.
The Claims Regulation rests essentially on the argument that, irrespective of an assessment of their truthfulness and beneficiality, nutrition and health claims on “undesirable” foods will produce an uncertain risk of harm to human health. However, “undesirable” foods that comply with nutrition labeling requirements, such as declarations of “undesirable” ingredients (alcohol, salt, unsaturated fats, trans-fatty acids and sugar), are non-hazardous and safe. Their injuriousness can only stem from abnormal use, not intended, implied, suggested or proposed by the food’s manufacturer or retailer.
Article 5 of the NHCR provides that it is the responsibility of the manufacturer who uses a health claim to integrate EFSA’s/EU’s ingredient-based conditions of use and the related health claim in a final – ready for consumption – product by seeing to it that:
“(b) the nutrient or other substance for which the claim is made:
(i) is contained in the final product in a significant quantity as defined in Community legislation or, where such rules do not exist, in a quantity that will produce the nutritional or physiological effect claimed as established by generally accepted scientific evidence;”
and that
“(d) the quantity of the product that can reasonably be expected to be consumed provides a significant quantity of the nutrient or other substance to which the claim relates, as defined in Community legislation or, where such rules do not exist, a significant quantity that will produce the nutritional or physiological effect claimed as established by generally accepted scientific evidence;”
In this regard, it is up to the manufacturer to see to it that final (finished) products shall be safe when used according to the instructions concerning the products’ intended normal use. Quite clearly, when establishing and formulating the intended normal use for a final product, the manufacturer considers and establishes the product’s – absolute – safety. Arguably, use of a final product could become unsafe or “undesirable” when the product is used “to excess,” i.e. in quantities that greatly exceed those laid down in the product’s intended normal use instructions. However, this does not make the product unsafe. It makes a product’s excess abuse potentially unsafe or “undesirable.”
In light of this, Article 10.2 of the NHCR provides that “health claims shall only be permitted if the following information is included in the labelling, or if no such labelling exists, in the presentation and advertising:
(a) a statement indicating the importance of a varied and balanced diet and a healthy lifestyle;
(b) the quantity of the food and pattern of consumption required to obtain the claimed beneficial effect;
(c) where appropriate, a statement addressed to persons who should avoid using the food; and
(d) an appropriate warning for products that are likely to present a health risk if consumed to excess.”
When applied to “undesirable” foods, this should provide sufficient openings for manufacturers of “undesirable” foods to inform consumers that, although the food in question may be consumed as part of a long-term varied diet in appropriate – moderate – frequency and quantities, the fact that this food bears a health claim does not suggest that it should be consumed in excess of judicious nutritional advice.
So, the European Parliament was right. Let’s shred the nutrient profiles.
Bert Schwitters
[i] http://www.nutraingredients.com/Regulation-Policy/European-Parliament-votes-to-scrap-nutrient-profiles
[ii] See par.13 of the Proposal for a Regulation on nutrition and health claims made on foods; Brussels, 16.7.2003; COM(2003) 424 final 2003/0165 (COD)
[iii] See par.14 of the Proposal for a Regulation on nutrition and health claims made on foods; Brussels, 16.7.2003; COM(2003) 424 final 2003/0165 (COD)
[iv] See par.14 of the Proposal for a Regulation on nutrition and health claims made on foods; Brussels, 16.7.2003; COM(2003) 424 final 2003/0165 (COD)
[v] See par.14 of the Proposal for a Regulation on nutrition and health claims made on foods; Brussels, 16.7.2003; COM(2003) 424 final 2003/0165 (COD)
