'Digestive' biscuits? The lawyer Dario Dongo responds

Dear Dario good morning,

I noticed the presence, on the shelves of some supermarkets, of biscuits called 'digestive'. Is the use of this term to designate bakery products subject to any conditions?

Thank you very much,

Matteo


The lawyer Dario Dongo, Ph.D. in international food law, answers

Dear Matteo,

the term 'digestive' – nomen ipsum – can undoubtedly suggest to consumers in various European countries the digestibility of the food thus designated. Even more so since the word, of Latin origin, was included in the Saxon languages. The legal analysis of the case should therefore follow the logical path set out below.

1) 'Digestive', which rules apply in the EU?

The use of the term 'digestive' in commercial communication relating to a food product falls first and foremost within the scope of the Food Information Regulation (EU) No 1169/11. Even when this word is inserted into a commercial trademark, as we have seen. (1) This is voluntary information relating to food and is therefore subject to the general criteria of information loyalty referred to in Articles 7 and 36.

'A brand, trade name or invented name shown on the labelling, presentation or advertising of a food product which can be interpreted as a nutrition or health claim may be used without being subject to the authorization procedures laid down in this Regulation provided that the labeling , presentation or advertising also bears a corresponding nutritional or health claim that complies with the provisions of this Regulation' (EC Reg. 1924/06, article 1.3).

The recall the digestibility of a food also implies the suggestion that the consumption of this product can contribute to a physiological function of the human organism, namely digestion. The use of the term 'Digestive' must therefore also comply with the conditions set out in the Nutrition and Health Claims Regulation (EC) No 1924/06, in light of the jurisprudence of the Court of Justice of the European Union (CGEU). (2)

2) Nutrition and Health Claims Regulation (EC) No 1924/06

Nutrition and Health Claims Regulation (EC) No 1924/06 prescribes that any health claim relating to food must be authorized in advance by the European Commission - in agreement with the representatives of the Member States, to meet at the PAFF (Plants, Animals, Food and Feed) Standing Committee - on based on a scientific opinion from EFSA (European Food Safety Authority). (3)

2.1) Hypothesis of reference to general and non-specific benefits

The hypothesis to consider the word 'digestive' as a 'reference to general and non-specific benefits of the food' does not appear consistent with the official interpretation provided by the Court of Justice (CGEU), which instead identifies the reference to digestibility as a specific 'health claim'. And in any case, the label should carry a 'health claim' authorized pursuant to the regulation. (EC) 1924/06.

'The reference general and non-specific benefits of the nutrient or food for overall good health or well-being resulting from the state of health are permitted only if accompanied by a specific health claim included in the lists referred to in Articles 13 or 14' (EC Reg. 1924/06, article 10.3. See note 4).

2.2) Generic descriptors

Semi-sweet 'digestive' biscuits they were developed in Scotland starting from 1839 with the idea that, thanks to the use of sodium bicarbonate as an ingredient, they had antacid and digestive properties. The two main producers, in the following decades, also introduced bran and diastatic malt extract, to trigger an enzymatic reaction capable of converting part of the starch present in the flour into glucose, before baking.

United Biscuits – owner of the historic McVitie's brand, leader in the production of this type of biscuits - did not have the foresight to ask the English government to propose to the European Commission the registration of 'digestive' as a 'generic descriptor', for the specific purpose of obtaining a derogation from the application Nutrition and Health Regulation (EC) No 1924/06, article 1.3 (see paragraph 1 above).

A missed opportunity, which instead allowed the Italian manufacturer Monviso to continue using the term 'health biscuit', in Italy and Malta, and various other industries to preserve indications such as 'tonic water' and 'cough lozenges' (5,6) . Even more so when we consider that the European Commission must adopt the nutritional profiles provided for in Article 4 of Reg. (EC) 1924/06, which will otherwise make it impossible to refer such wordings to products with unbalanced nutritional profiles. (7)

3) Conclusions

Presentation and labeling in the European Union of biscuits and baked goods bearing the name 'digestive' can only be admitted if such products present the conditions for using a nutritional claim or a health claim in compliance with the conditions established in Regulation (EC) 1924/06. Otherwise it constitutes an administrative offense punishable in Italy with a fine of 5.000 to 10.000 euros, pursuant to Legislative Decree 27/2021.

It remains to ask how it is possible that the numerous products thus designated are still present on supermarket shelves and in the catalog of online marketplaces in every country of the European Union. As well as in the U.S.A., where health claims are also subject to specific rules. (8) 'Too big to fail, too big to be sanctioned'? The endemic violation of the rules is a symptom of the total inadequacy of official controls on consumer information.

Cordially

Dario

Footnotes

(1) Reg. (EU) 1169/11, article 2.2. See paragraph 1 of the previous article Gluten-free panettone? The lawyer Dario Dongo responds. FARE (Food and Agriculture Requirements). 19.12.23

(2) 'Highly digestible', 'easy to digest', what rules on the label? The lawyer Dario Dongo responds. FARE (Food and Agriculture Requirements). 10.11.23

(3) Reg. (EC) 1924/06, article 13. See also the consolidated text of Reg. (EU) 432/12 of its implementation

(4) Generic nutrition & health claims in advertising? The lawyer Dario Dongo answers. FARE (Food and Agriculture Requirements). 31.3.23

(5) Dario Dongo, Marina De Nobili. Health claims, green light for tonic water and health biscuit. GIFT (Great Italian Food Trade). 11.3.19

(6) Commission Regulation (EU) 2019/343 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 http://tinyurl.com/52nu7944

(7) Dario Dongo, Andrea Adelmo Della Penna. Improve diet and public health with useful news on the label. EFSA opinion on nutritional profiles. GIFT (Great Italian Food Trade). 23.4.22

(8) Dario Dongo, Alessandra Mei. USA. Health Claims and false advertising, updated guidelines from the Federal Trade Commission. GIFT (Great Italian Food Trade). 11.2.23



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