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Food intended for Sportspeople: The EU's Regulatory Framework after 20 July 2016
Published online by Cambridge University Press: 20 January 2017
Extract
On 20 July 2016, a new legal framework comes into effect for the so-called “food for specific groups”, established by Regulation (EU) No. 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control (hereinafter, FSG Regulation). The FSG Regulation repeals Directive 2009/39/EC on foodstuffs intended for particular nutritional uses (hereinafter, the PARNUTS Directive). Food intended for sportspeople placed on the market will be affected by the repeal of the PARNUTS Directive as such food has not been included in the FSG Regulation's scope and will have to comply with general EU food law from 20 July 2016. This has a major impact on compositional requirements, product names and claims made on such food. Inter alia, the possibility to make so-called “suitability statements” on food intended for sportspeople, which currently does give manufacturers some margin to make statements that some consider as something similar to claims, is likely to be controversial without the PARNUTS Directive.
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References
1 Regulation (EU) No. 609/2013 of the European Parliament and of the Council of 12 June 2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control and repealing Council Directive 92/52/EEC, Commission Directives 96/8/EC, 1999/21/EC, 2006/125/EC and 2006/141/EC, Directive 2009/39/EC of the European Parliament and of the Council and Commission Regulations (EC) No. 41/2009 and (EC) No. 953/2009, OJ 2013 L 181/35.
2 Directive 2009/39/EC of the European Parliament and of the Council of 6 May 2009 on foodstuffs intended for particular nutritional uses, OJ 2009, L 124/21.
3 In Annex I A No. 5.
4 Council Directive 89/398/EEC of 3 May 1989 on the approximation of the laws of the Member States relating to foodstuffs intended for particular nutritional uses, OJ 1989 L 186/27.
5 Council Directive 77/94/EEC of 21 December 1976 on the approximation of the laws of the Member States relating to foodstuffs for particular nutritional uses, OJ 1977 L 26/55.
6 Commission Proposal of 16 January 2008 for a Directive of the European Parliament and of the Council on foodstuffs intended for particular nutritional uses (Recast), COM (2008) 3.
7 OJ 2006 L 404/9.
8 Recital 32 of the FSG Regulation.
9 European Commission, Study “SANCO/2014/E4/027 on foods intended for sportspeople”, Ref. Ares(2014)3016865 - 15/09/2014. Available on the Internet at: http://ec.europa.eu/food/safety/docs/labelling_nutrition-special_groups_food-sportspeople-tor_2014_027_en.pdf (last visited on 3 February 2016).
10 Idem.
11 Specialised Nutrition Europe (SNE), Questions & Answers - Foods intended to sportspeople, 9 June 2015. Available on the Internet at: http://www.specialisednutritioneurope.eu/uploads/content/2015315finalsneqaonsportsfoodsjune2015.pdf (last visited on 3 February 2016).
12 Such as the European Specialist Sports Nutrition Alliance (ESSNA) and the Union of European Soft Drinks Associations (UNESDA).
13 Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, OJ 2002 L 31/1.
14 Not published before 23 February 2015.
15 EFSA Scientific and technical assistance on food intended for sportspeople, 29 September 2015. Available on the Internet at: http://www.efsa.europa.eu/en/supporting/pub/871e (last visited on 3 February 2016).
16 Scientific Committee on Food. Report of the Scientific Committee on Food on composition and specification of food intended to meet the expenditure of intense muscular effort, especially for sportsmen SCF/CS/NUT/SPORT/5 Final (corrected) of 28 February 2001.
17 OJ 2002 L 183/ 51.
18 So far, seven health claims targeting sportspeople have been authorised and some additional may be considered relevant for them. There are substances for which claims were not authorised, sometimes despite a positive assessment of EFSA regarding the beneficial effect for sportspeople of the product concerned, because the claim was considered as non-beneficial for the general population from the health policy point of view (e.g., “high in sodium”). Commission Staff Working Document of 10 December 2015 on food intended for sportspeople.
19 Commission Staff Working Paper - Impact Assessment accompanying the document “Proposal for a Regulation of the European Parliament and of the Council on food intended for infants and young children and on food for special medical purposes.
20 Commission Staff Working Document of 10 December 2015 on food intended for sportspeople.
21 Summery Record, European Commission Working Group of the Advisory Group on the Food Chain and Animal and Plant Health on 21 December 2015.
22 Idem.
23 Supra at note 20.
24 Judgment of 18 May 2000, Case C-107/97 Rombi and Arkopharma, ECR 2000 I-03367.
25 Idem, para 59-60.
26 In particular for not yet authorised (and controversial) nutrition claims which set out product properties, such as high energy, high carbohydrates.
27 Supra at note 20.
28 Annie-Rose Harrison-Dunn, Sports food expected to outpace sports drinks in 2015 – 2020, Nutraingredients.com, 14 December 2015. Available on the Internet at: http://www.nutraingredients.com/Markets-and-Trends/Sports-food-expected-to-outpace-sports-drinks-in-2015-2020 (last visited on 3 February 2016).
30 Supra at note 21.
31 The principle of mutual recognition stemming from Regulation (EC) No. 764/2008 of the European Parliament and of the Council of 9 July 2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State (OJ 2008 L 218/21) which defines the rights and obligations for public authorities and enterprises that wish to market their products in another EU country, does not appear to work for such products. The Regulation also defines how a country can deny mutual recognition of a product.