Kneppelhout & Korthals: Is the balance between healthy and tasty arranged?02/21/2017

By Franca Damen - Attorney

It is important that consumers can make a conscious choice for consumer goods based on easy and honest information. Therefore, consumers have to be protected regarding food information. However, every consumer chooses products based on his own needs. A majority of consumers will still choose products on taste, though products are increasingly more often chosen based on health elements. How should producers deal with the balance between healthy and tasty?

Rules on food information
Most importantly, producers have to comply with the rules on provision of food information. These rules are set in the European Regulation on the provision of food information to consumers (TFEU 114 No 1169/2011). The purpose of this regulation is to provide a high level of protection of consumers’ health and interests in order to make well-overthought choices when food information is provided. Among the elements are information on ingredients and its quantity, the expiration date, specific storing conditions and information on how to use the product.

The food information cannot be misleading, especially regarding the characteristics of the foodstuff. Also, ads from foodstuffs cannot be misleading. The Netherlands Food and Consumer Product Safety Authority (Nederlandse Voedsel- en Warenautoriteit, NVWA) is the watchdog who keeps an eye out for misleading products. If one is violating the rules ,the NVWA can impose a sanction. Consumers and other groups can file complaints on potentially misleading labels at the NVWA or the Dutch Advertising Code (Reclame Code Commissie, RCC).

Within this framework, it is important to note that consumer goods undertakings are required to mention the nutritional value on labels based on the European regulation on the provision of food information for consumers as of December 13th, 2016. The nutritional values that have to be mentioned include energy in Kj/kcal, amount of fats, saturated fat, carbohydrates, sugar, protein and salt. The required nutritional value can be complemented with an indication of nutrients, including non-saturated fats, starch and fiber. Rules on how to mention nutritional value are set in the Regulation. Rules on mentioning nutritional value concern units of measurement (gram / kJ / kCal), letter size, expression (per 100 gram or ml or per portion or consumption unit), order of presenting and the presentation mode (table).

Point is that all foodstuffs need to have their nutritional value mentioned though there are some exemptions. The nutritional value does not have to be mentioned on non-processed products that contain just one ingredient, processed products that only have ripened, herbs, tea, chewing gum and foodstuffs that are directly distributed from producer to end user in small quantities or a local retailer who sells directly to end-users. Another question, does every package have to contain the nutritional value? After all, some packages are too small to contain all required information. Concerning this, the Regulation is unclear unfortunately. One is not required to mention all nutritional value if the largest surface of a package is less than 10 cm². However, the Regulation also states that the mandatory mentioning of nutritional value is not required on packages of which the largest surface is less than 25 cm².

Agreement on improving composition of products
These rules are an important foundation, with the mandatory mentioning of nutritional value in particular. Besides, another important foundation is the agreement from interest groups of supermarkets, producers, hospitality industry and caterers on the reduction of salt, saturated fats and energy in foodstuffs. Retailers, producers and caterers use the agreed-upon maximum amounts for production or sales. The set maximum amounts can also be reduced over time to significantly reduce the amount across all products. Reducing amounts is also relevant for consumers to get used to the taste. Regarding the taste, it is important that all branches participate. As the agreement is not binding, companies are not required to comply with the agreement. The set agreements per product category, the participants of the agreement and the results are publicly shared and the progress of the product composition is monitored by the National Institute for Public Health and the Environment (Rijksinstituut voor Volksgezondheid en Milieu, RIVM).

Balance between healthy and tasty
If all industries participate in the agreements, consumers can get used to lower amounts of salt, saturated fats and energy step by step, it would certainly help to put healthy and tasty in one sentence. The mandatory mentioning of nutritional value helps with that step. The requirement can stimulate undertakings to lower the amount of salt, saturated fat and sugar in their products. Also, the requirement also enables consumers to choose products that align with their own needs using easy and honest information.

The Dutch Ministry of Health, Welfare and Sport has released an action plan on labeling of foodstuffs on October 4th, 2016 that should further help in increasing honesty and freedom of choice for consumers. One of the elements in the plan is the replacement of a checkmark that indicates a healthy option by a food app. The app provides more possibilities in providing information than a checkmark. What someone considers to be healthy, can be perceived as unhealthy by the other. However, a checkmark provides a faster and easier way of verifying if your food is good or not than a food app, especially if you’re not carrying your smartphone with you all the time. Keeping the checkmark next to the food app is not such a bad idea.