Presentation Vitafoods Europe 2016 marketing functional food to children

1. MARKETING FUNCTIONAL FOOD
TO CHILDREN WITHIN THE EU
RESTRICTIONS & POSSIBILITIES
VitaFoods
Geneva, 11 May 2016
Life Stages Theatre 16.15 PM
Karin Verzijden
www.axonlawyers.com

2. Agenda
• Learning the WHO recommendations on the marketing of foods and
non-alcoholic beverages to children
• Possibilities and restrictions from an EU perspective
• National self-regulatory practises
for advertising at children and minors
in the NL and other EU Member States
2

3. Introduction
Axon Lawyers
3
• Amsterdam based law firm with international focus
• Fully dedicated to life sciences, familiar with food business
• Assisting high tech companies bringing innovative food products to the
market
• International network through European Alliance of Life Sciences Law
Firms
• Reporting current food law developments at blog FoodHealthLegal

4. WHO recommendations (1)
4
Rationale recommendations 2010
• NCD’s represent a threat to human health and
socioeconomic development.
• Unhealthy diet is a key modifiable risk factor for NCD’s.
• 2010: 42 million children < 5 overweight / obese.
• Risks of hypertension, insulin resistance and adult obesity.
• Heavy marketing of products high in fat, salt or sugar challenge efforts to
eat healthily – thus…..

5. WHO recommendations (2)
5
Purpose of Recommendations
• Promote responsible marketing of foods and non-alcoholic beverages to
children and thereby
• Reduce impact of foods high in saturated fats, transfatty acids,
free sugars or salt.
• Guide efforts of Member States in designing new and/or strenghtening
existing policies on food marketing to children
2012: WHO follow-up by framework for implementation

6. WHO recommendations (3)
6
Selection of Recommendations
# 2 Reduction of exposure of children to and power of marketing of foods
high in saturated fats, transfatty acids, free sugars or salt.
# 5 Settings where children gather should be free from all forms of
marketing of foods indicated under # 2.
# 12 Member States are encouraged to identify existing information on the
extent, nature and effects of food marketing to children

7. Possibilities & restrictions in the EU (1)
7
Regulation (1169/2011) on Food Information to Consumers
Food information
• shall not be misleading;
• shall be accurate, clear and easy to understand for the consumer;
• shall not attribute to any food the property
of preventing, treating or curing
a human disease.

8. Possibilities & restrictions in the EU (2)
8
Claims Regulation 1924/2006 distinguishes between:
• general claims;
• disease risk reduction claims;
• claims referring to children’s development & health.
So far, 11 authorized claims aimed at children’s health regarding
• DHA (3)
• ALA & LA (1)
• Calcium and/or Vitamin D (3)
• Phosphorus (1)
• Iodine (1)
• Iron (1)
• Protein (1)

9. Possibilities & restrictions in the EU (2)
9
How to properly apply health claims targeted at children?
Obviously, this is not the way!

10. Possibilities & restrictions in the EU (3)
10
How about the marketing of this US product for bone and brain support?

11. Possibilities & restrictions in the EU (4)
11
Examples of claims & conditions of use
claim
“Calcium and vitamin D are needed for normal growth and development of
bone in children”
conditions of use
Product at stake should at least contain
• 0,75 μg vitamin D and 120 mg calcium > food products
RI vitamin D: 5 μg
RI calcium: 800 mg
significant amount > 15 % for food

12. 12

13. Possibilities & restrictions in the EU (5)
13
Examples of claims & conditions of use – continued
claim
“Iron contributes to normal cognitive development of children”
condition of use
product at stake should at least contain
• 1,05 mg iron > beverages
RI iron = 14 mg
significant amount > 7.5% for beverages

14. 14

15. Possibilities & restrictions in the EU (6)
15
Examples of claims & conditions of use – continued
claim
“Phosphorus is needed for the normal growth and development of bone in
children”
condition of use
Product at stake should at least contain
• 105 mg phosphorus > food products
RI phosphorus = 700 mg
significant amount > 15 % for food

16. 16

17. Possibilities & restrictions in the EU (7)
17
Food for Special Groups Regulation (609/2013) as per 20 July 2016
• general requirements on allowed substances > Union List
• additional requirements for infant and follow-on formula
Infant: child < 12 months
Infant formula: food intended for use by infants satisfying all nutritional
requirements until introduction of appropriate complementary feeding
Follow-on formula: food intended for use by infants upon introduction of
appropriate complementary feeding, constituting the principal liquid
element in a progressively diversified diet.

18. Possibilities & restrictions in the EU (8)
18
Additional requirements for infant and follow-on formula
• Labelling, presentation and advertising shall be designed so as not to
discourage breast feeding.
• Labelling, presentation and advertising shall not include pictures of
infants (or other images) which may idealise such formulae.
• However, graphic representation for easy identification of these products
and for illustrating methods of preparation are permitted.
• Not easy to combine these requirements!

19. National self-regulatory practises (1)
19
The Dutch Advertising Authority
• Private body created in the ‘60-ies by advertising industry (Cf. Deutsche
Werberat in Germany or Advertising Standards Authority in UK).
• Promotes sensible and responsible advertising in the NL, so that
consumers can trust commercials and keep on trusting them.
• Offers a toolkit putting this to practice for various fields including food.
• Handles complaints from companies and consumers at 2 levels:
(1) Advertising Code Committee
(2) Board of Appeal - no exclusion of other legal means.

20. National self-regulatory practises (2)
20
International context
• Dutch Advertising Authority member of the European Advertising
Standards Alliance, just like many other EU self-regulatory bodies.
“We love advertising so much, sometimes we have to restrain it”
Financing
• Contributions made by organisations committing to Advertising Code.
• 0,025 % of media budget > 1 € million with maximum of € 30K.
Enforcement
• Recommendation not legally enforceable,
but in practise usually (96%) applied.
• Compliance dept. communicates with Authority for Consumers &
Markets based on cooperation protocol.

21. National self-regulatory practises (3)
21
Product / audience specific satellite codes:
• Food products
• Tobacco products
• Alcoholic beverages
• Children specific
Dutch
Advertising
Code
Food
Alcohol
Children
Tobacco

22. National self-regulatory practises (4)
22
Advertising Code for Children
• Advertising targeted at children should not be misleading
• To protect children from physical / moral harm, advertising should not
• Push them to by any product by taking advantage of their
inexperience and gullibility
• Directly push their parents to buy a specific product
• Take advantage of the confidence children have in parents &
teachers
• Show children in dangerous situations

23. National self-regulatory practises (5)
23
Advertising Code for Food Products
Not allowed: No advertising of food products for children < 12
• in media generally targeted at < 12 years.
• using children’s idols.
• in schools (including sampling)
Allowed: advertising of food products for children < 12
• in cooperation with public authorities
• on POS materials and packaging
• advertising targeted at children between 7 - 12 years
meeting certain nutritional criteria and portion sizes

24. National self-regulatory practises (6)
24
Advertising Code Committee 3 July 2014
Supermarket vouchers for Dutch treats
• Teacher distributes vouchers for
millefeuilles and ice cream during
Dutch King’s Day (27 April).
• Violation of Children’s Advertising
Code and of Advertising Code for Food Pr
Products:
• abuse of confidence inspired by teacher.
• sampling of food products not allowed in school.
NB Sponsoring under certain conditions allowed based on private –
public partnership.

25. National self-regulatory
practises (7)
25
Is self-regulation effective enough?
YES
• Dutch Federation of Food Industry (FNLI) considers it is.
• Age limit for prohibition of food marketing was raised from 7 12
• Do not just protect children, but also teach them to navigate in real life.
NO
• Counter-initiatives by organisations like Foodwatch (also active in UK
and in France).
• Example: Alliance Stop Children Marketing fights marketing for
unhealthy products aimed at children.
• City of Amsterdam (1/5 children overweight) joined this Alliance on
1 October 2015.

26. National self-regulatory practises (8)
26
ASA Ruling on Nestlé UK Ltd 23 December 2015
Nesquick bunny
• Ad on ASDA’s own brand milk labels featured Nesquick
bunny stearing cup of hot choclate.
• Text included: For a great start to the day! Nutri-start Vit D Zinc Iron
complementing milk.
• Children’s Food Campaign challenged i.a. that combination of bunny +
claim encouraged poor nutritional habits in children.
• ASA perceived claim as referring to general health benefit > only
allowed if combined with specific health claim.
• Claims upheld, now that product high in added sugar was promoted as
suitable breakfast option.

27. C Take home
27
A
• Health claims in the EU have a specific legal regime.
• Nutrient requirements for EU health claims are strictly regulated.
Contrary to DRR claims, children specific claims do not allow flexibility.
• In addition to EU legal and regulatory requirements, self-regulation plays
important role in several Member States. These offer both restrictions &
opportunities.