'Rich in flavonoids'? Lawyer Dario Dongo answers

Dear Dongo lawyer,

I submit to you the case of a food produced with particular varieties of plants that contain a significant concentration of bioactive compounds (such as flavonoids or polyphenols).

The product can be described as 'naturally rich in flavonoids'and'natural source of polyphenols', without making any reference to the health benefits that might be associated with it?

Many thanks, Alessandro

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

Dear Alessandro,

'statements of fact' represent a grey area of ​​the Nutrition and Health Claims Regulation (EC) No 1924/06, not even considered among others in the European Commission guidelines (2007) for its application. (1)

1) NHCR, scope

Nutrition and Health Claims Regulation(EC) No 1924/06 applies only to voluntary information in commercial information relating to foods, qualified as:

– «health claims»: 'any indication that affirms, suggests or implies the existence of a relationship between a food category, a food or one of its components and health';

– «nutritional indication»: 'any indication which states, suggests or implies that a food has particular beneficial nutritional properties due to:

a) to the energy (caloric value) that it contributes, contributes at a reduced or increased rate, or does not contribute, and / or

b) to nutrients or other substances it contains, contains in reduced or increased proportions, or does not contain'.

"Other substances" are in turn defined as 'a substance other than nutrients that has a nutritional or physiological effect'. (2)

2) Statements of fact

Statements of fact which relate to properties or values ​​other than those expressly indicated – such as the Glycemic Index of products, as seen (3) – are certainly excluded from the scope of NHCR.

The only quote the presence, in a food, of bioactive compounds – such as polyphenols, lycopene, astaxanthin, for example (4,5,6,7,8) – should also be considered excluded from the regulation Nutrition & Health Claims, provided that the operator does not suggest in commercial information:

– a health benefit associated with the presence of such substances. Otherwise, it would constitute a 'health claim';

– the description of a physiological or nutritional function (e.g. antioxidant).

Having a different opinion, the simple mention on the label of any substance (other than vitamins and mineral salts) present in a food product would qualify as a 'nutrition claim'. And this is clearly not the rationale of the Nutrition and Health Claims Regulation (EC) No 1924/06.

3) Provisional conclusions

The information on labels and advertising must be clear, understandable and not misleading for consumers. It is possible to refer to the presence of substances such as phenolic compounds, taking care to avoid any suggestion of their nutritional and physiological properties.

The operator must in any case be able to demonstrate with analytical data the truthfulness and relevance of the news reported. And it is advisable, in a logic of transparency that is all the more useful where reference parameters are lacking, to share this data on the company website.

Cordially

Dario

Footnotes

(1) European Commission. Guidance on the implementation of Regulation (EC) No 1924/06 on nutrition and health claims made on food. Conclusion of the Standing Committee on the Food Chain and Animal Health. December 14, 2007 https://tinyurl.com/bdhbct4r

(2) Nutrition and Health Claims Regulation (EU) No 1924/06, Article 2

(3) Glycemic index on the label? The lawyer Dario Dongo answers. FARE (Food and Agriculture Requirements). 24.6.23

(4) Salvatore Parisi, Dario Dongo. Polyphenols and natural phenolic compounds in food, new studies. GIFT (Great Italian Food Trade).

(5) Dario Dongo, Andrea Adelmo Della Penna. Omega 3, polyphenols and other food for thought. Scientific studies. FT (Food Times). August 18, 2020

(6) Marta Strinati. Lycopene, elixir against hypertension. FT (Food Times). March 30, 2022

(7) Marta Strinati. Lycopene, the wonders for health. Brazilian study. GIFT (Great Italian Food Trade).

(8) Dario Dongo, Andrea Adelmo Della Penna. Astaxanthin from microalgae, the antioxidant revolution. FT (Food Times). May 30, 2023