The Sugar Bill – What is it? When can we expect it? Is it legal?

5th November 2015

Unlike the voluntary 'traffic light labelling' scheme introduced in 2013, which is currently under review by the European Commission (EC) following its initiation of infringement proceedings against the UK - the ‘Sugar Bill’ will introduce new mandatory labeling requirements and advertising restrictions. But are these legal under European (EU) law?

At present food labelling is harmonised by the Food Information to Consumers Regulation (EC No 1169/2011)(FIC). Similarly, health claims are regulated by the Nutrition and Health Claims regulation (EC No 1924/2006)(HCR). By implementing new national laws that may impact the free movement of goods without 1st notifying the EC could result in infringement action against the Member State.

So what is the ‘Sugar Bill’ or by its full name the ‘Sugar in Food and Drinks (Targets, Labelling and Advertising) Act 2015’? How will it impact labelling and claims if passed? And should industry be concerned?

The Sugar Bill – Labeling & Claims
Labelling

There are a number of concerns regarding this Bill. One of the main concerns relate to its new labelling rules, which will impose the requirement to represent sugar content on food in 'teaspoon units', where one teaspoon equals 4 grams of sugar (AKA the Jamie Oliver effect). The concern here is that according to recital 49 of the FIC;

As regards the matters specifically harmonised by this Regulation, Member States should not be able to adopt national provisions unless authorised by Union law. This Regulation should not prevent Member States from adopting national measures concerning matters not specifically harmonised by this Regulation. However, such national measures should not prohibit, impede or restrict the free movement of goods that are in conformity with this Regulation.

Furthermore, under Article 35 of the FIC additional forms of [removed]I.E. teaspoons of sugar) of the Nutrition Declaration or nutrients referred to within it:
 
States shall provide the Commission with the details of such additional forms of expression and presentation.

However, the main restrictions for this Bill are made clear in Article 38 (1) where matters harmonized by the FIC (i.e. the presentation of sugar on pack) Member States may not adopt nor maintain national measure unless authorized by Union law. Such restrictions maybe overcome for reasons related to public health or protection of consumers as long as the Member State (in this instance the UK) notify the European Commission (Article 45).

However, given the possibility for such legislation to impact the free movement of goods and also discriminate then its likely the EC would be lobbied hard to prevent the adoption of this Bill into union law.

Health Claims

Health and Nutrition claims are harmonized across the 28 Member States, however, this Bill seeks to impose new restrictions (Section 3(b)) prohibiting the use of language suggesting that a food is ‘healthy’ or ‘low fat’ when the sugar content of the food exceeds 20%. [Note: The wording here is key as the Bill states ‘language suggesting’ a food is healthy. Surely, therefore any health claim on a product suggests a product is healthy and therefore if having greater than 20% sugars is prohibited according to the Bill].

This is a de facto national measure resulting in a ‘nutrient profiling’ of foods that would be in direct contravention with the provisions within the HCR.

Article 4 of the HCR specifically covers nutrient profiling (how much fat, sugar and salt allowed for a food to be considered healthy or not) and to date these have not been implemented into EU law. Furthermore, reference to general non-specific benefits of food for overall good health or well-being can only be made if accompanied by a specific authorized health claim (Article 10 (3)).

As such making foods subject to a 20% sugar profile restriction would ban any general health claim made on pack even if accompanied by an authorized health claim. This would be clearly be a restriction to free trade and illegal under EU law.

Concerns for sport food and dairy markets
Those involved in high intensity sports use sugar (carbohydrates) to enhance performance during exercise and indeed EFSA have recognized glycemic carbohydrates to aid in recovery (A health benefit/claim). As such the new Sugar Bill could impact (Ban) products used for recovery, rehydration or delivery of energy during endurance exercise. The Bill currently contains no derogations for the sports nutrition category and that is a major concern.

How about the dairy industry? We know that for example dark chocolate (high in cocoa flavanols) already have a health claim approved, but most dark chocolate exceeds the proposed 20% sugar threshold stated in the Bill. As such in its present form the Bill would prohibit and type of health claim used on such chocolate products. What about low fat yoghurts? Many such products exceed 20% sugar and again even if the profile is low fat, high in vitamin D and <150kcals per serving according to the Bill would still be restricted from stating ‘low fat’ or ‘healthy’ or carry any claim meaning the same.

What’s next?
So far the Bill has experienced little exposure following the 1st reading and will likely float through the second reading without much fan fare. However, the committee stage will follow and at this point evidence from experts and specialist interest groups will occur and there will be the ability to ask for amendments (proposals for change).

It seems this Bill has come off the back of the attack on sugar that has been popular both pre and post the UK's Health Committee on childhood obesity covered in the media. But it seems its been drafted with little thought to the UKs obligations under European law and specifically the free movement of goods. Its time now for industry to consider just what impact this Bill could have and for specific segments such as the sports nutrition category to engage with the political establishment to ensure appropriate derogations are implemented.

 Sources:
1. Sugar in Food and Drinks (Targets, Labelling and Advertising) Act 2015. Accessed online at: http://www.publications.parliament.uk/pa/bills/cbill/2014-2015/0076/15076.pdf

2. The Food Information Regulation (SI 2014/1855). Accessed online at:
http://www.legislation.gov.uk/uksi/2014/1855/pdfs/uksi_20141855_en.pdf 

3. The Nutrition and Health Claims (England) Regulation (SI 2007/2080). Accessed online at:
http://www.legislation.gov.uk/uksi/2007/2080/pdfs/uksi_20072080_en.pdf

4. Progress of the Sugar in Food and Drinks (Targets, Labelling and Advertising) Act 2015. Accessed online at:
http://services.parliament.uk/bills/2014-15/sugarinfoodanddrinkstargetslabellingandadvertising.html



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