If the UK leaves the EU without a withdrawal agreement in place (“No-deal Brexit”), will food businesses still be able to rely on current and proposed nutrition and health claims such as “helps lower cholesterol” or “no added sugar”?
Currently, permitted nutrition and health claims for food products sold in the UK are contained in the EU Nutrition and Health Claims Register. However, in the event of a No-deal Brexit, this register will no longer apply. In preparation, the UK Government has published a UK Nutrition and Health Claims Register, containing a comprehensive list of authorised nutrition and health claims that food business operators (“FBOs”) must instead comply with in respect of food products sold in the UK from 31 October 2019 (or such later date that the UK leaves the EU without a deal).
All claims that are contained in the EU Register as of exit day will be adopted and included in the UK Register. Despite this, divergence is expected to occur over time, and FBOs selling products in the UK as well as EU jurisdictions will have to be cautious in ensuring that any health and nutrition claims made in respect of such products are authorised under both registers.
The Government has also published a list of ‘on hold’ health claims that are still under consideration in the EU, which may continue to be used in the UK if there is a no-deal Brexit to minimise disruption to businesses. Longer term, however, the Government will launch a call for evidence in respect of ‘on hold’ health claims, to determine how these will be dealt with under the UK authorisation system.
FBOs seeking authorisation of a new health or nutrition claim for a product sold in the UK will have to submit an application to the UK Nutrition and Health Claims Committee (“UKNHCC”) rather than the European Food Safety Authority (“EFSA”). However, the UKNHCC has confirmed it will take a similar approach to that established by EFSA, and applicants should continue to consult the EFSA guidance on the scientific requirements for health and nutrition claims related to the following:
- antioxidants, oxidative damage and cardiovascular health;
- appetite ratings, weight management, and blood glucose concentrations;
- bone, joints, skin, and oral health;
- functions of the nervous system, including psychological functions;
- muscle function and physical performance; and
- the immune system, the gastrointestinal tract and defence against pathogenic microorganisms.
To avoid delay, the Government recommends that applicants complete a Medicines Borderline Advice Form to be submitted to the Medicines and Health Products Regulatory Agency prior to submitting a health claim for assessment to UKNHCC. This will clarify whether or not the claim they wish to make about a nutrient or substance would be considered medicinal. For the same reason, applicants should also check with the Food Standards Agency whether their food would be considered a novel food in the UK.