Highly digestible without lactose? The lawyer Dario Dongo responds

Dear Dario good morning,

the marketing area of ​​our retail group suggests inserting the claim

'high digestibility' on some fresh products (milk, yoghurt, fruit yoghurt) with private labels, made from lactose-free milk.

This indication is in fact present on the label and advertising of various industrial brand products and distribution on the Italian market, but not also on our brand products in other EU and non-EU countries.

However, I have not been able to find a regulatory reference that explicitly authorizes this wording. Is there perhaps some Italian regulation or ministerial circular that I have missed?

Many thanks, Tiziana


 

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

Dear Tiziana,

any indication that refers to the 'digestibility' of a food - if reported in commercial communication (i.e. labels, online and offline advertising, social media) relating to a product or a line of products - qualifies as a 'health claim'.

Court of Justice of the European Union (CJEU), as we have seen, has provided an official and binding interpretation precisely in this regard. (1) The Nutrition and Health Claims Regulation (EC) No 1924/06 (NHCR).

1) EU Register of Health Claims

EU Register of Health Claims (2) does not contain any indication relating to the terms 'digestibility'and'digestible’, (3) and yet it 56 health claims – of which only 3 are authorized – to the concept of 'digestion'. Two of these refer to lactose:

 – 'Live cultures in yogurt. In subjects who poorly digest lactose, the live cultures in yogurt or fermented milk improve the digestion of the lactose contained in the product';

– 'Lactase. Lactase improves the digestion of lactose in subjects who poorly digest lactose.

2) Generic descriptors

'Lactose-free' products which bear the indication 'high digestibility', it is added, are not present in the list of generic descriptors referred to in Regulation (EU) No. 2019/343. (4) Such list:

– was published by the European Commission on the basis of the requests submitted to it by the Member States, pursuant to Regulation (EU) No. 907/2013, (5)

– refers to the 'generic descriptors' with over 20 years of demonstration of use, at the date of entry into force of the Regulation. (EU) No. 907/2013,

– allows the products included therein to continue the use of the 'generic descriptors' without having to apply the provisions of the NHCR. For Italy, the only generic descriptors included in the list are 'tonic' (water) and 'health biscuit'.

3) Conclusions

The indication 'lactose-free' does not qualify as a nutritional claim and is expressly excluded from the scope of the Nutrition and Health Claims Regulation (EC) No 1924/06 (see recital 22). Its use on the label and advertising of commonly used foods is therefore permitted, in accordance with the decisions of the Member States, pending the possible definition of harmonized rules by the European Commission, on the basis of the delegation granted to it in the Regulation. (EU) No. 1169/11.

Il claim 'high digestibility' instead qualifies as a health claim, in light of the aforementioned jurisprudence of the Court of Justice of the European Union (CJEU). Nonetheless, the use of wording on the digestibility of lactose-free dairy products has been and still is widespread - in Italy alone - with the tacit consent of the competent authorities. To reconfirm, if ever there was a need, the lack of official controls and consumer protection in this area.

Cordially

Dario

Footnotes

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

(2) EU Register of Health Claims https://ec.europa.eu/food/food-feed-portal/screen/health-claims/eu-register

(3) Conversely, there are some indications, authorized and otherwise, on non-digestible carbohydrates

(4) 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/7tawenu2

(5) Commission Regulation (EU) No 907/2013 setting the rules for applications concerning the use of generic descriptors (denominations)



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