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A Review of EU Regulation of Sports Nutrition: Same Game, Different Rules

Published online by Cambridge University Press:  06 March 2019

Samvel Varvaštian

Abstract

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Today's athletes, both professionals and amateurs, use a wide range of different nutritional substances to increase training performance, improve the recovery process, burn fat, gain muscle mass, etc. Although such substances are not always thoroughly researched for their potential effect on humans, they are popular and easy to obtain. Therefore, an adequate regulatory system is needed to ensure the protection of consumers. Currently, however, there are no specific provisions with regard to sports nutrition in EU law; thus, such products are usually marketed as food supplements, fortified foods, dietetic foods, and/or foods with nutrition or health claims. This article reviews the relevant legislation with a particular emphasis on policy developments regarding sports nutrition.

Type
Developments
Information
German Law Journal , Volume 16 , Issue 5 , October 2015 , pp. 1293 - 1315
Copyright
Copyright © 2015 by German Law Journal GbR 

References

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74 Id. at art. 9(1).Google Scholar

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85 Id. at recital 7.Google Scholar

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90 Id. at art. 6.Google Scholar

91 Id. at art. 6(5)(a).Google Scholar

92 Id. at art. 17(3).Google Scholar

93 See Lalor, Fiona & Wall, Patrick G., Health Claims Regulations: Comparison Between USA, Japan and European Union, 113 Brit. Food J. 298 (2011).Google Scholar

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95 See id. at arts. 2(2)(4) & (5) (supplying definitions of nutrition and health claims).Google Scholar

96 Id. at art. 1(2)(d).Google Scholar

97 An example of nutrition and health claims on a sports nutrition product, a BCAA complex: “BCAA complex is a source of Vitamin B6, which contributes to: the regulation of hormonal activity; normal energy-yielding metabolism; the reduction of tiredness and fatigue; normal functioning of the immune system and nervous systems; normal protein and glycogen metabolism; normal red blood cell formation.” BCAA Complex, Scitech Nutrition, http://www.sciteconline.com/language/en/products/scitec_nutrition/bcaas/bcaa_complex (last visited Aug. 13, 2015).Google Scholar

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103 Id. at art. 5. For example, that the nutrient or other substance, present in food, has been scientifically shown to have a beneficial nutritional or physiological effect, is contained in due quantity, etc.Google Scholar

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105 For example, “high protein,” “source of vitamins/minerals,” “source of omega-3 fatty acids,” etc.Google Scholar

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107 These include: a statement indicating the importance of a varied and balanced diet, the pattern of consumption required to obtain the claimed beneficial effect, a statement addressed to persons who should avoid using the food, and an appropriate warning for products that are likely to present a health risk if consumed to excess.Google Scholar

108 According to the latter, health claims are classified into three types: “function” health claims (related to growth, development, and functions of the body, psychological and behavioral functions, and slimming or weight-control) under art. 13(1), risk of disease reduction claims, and children development and health claims under arts. 14(1)(a) and (b), respectively. Health Claims, Eur. Comm'n, http://ec.europa.eu/food/food/labellingnutrition/claims/health_claims_en.htm (last visited Aug. 13, 2015).Google Scholar

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110 Generally, in case of non-compliance, the products in question may not be marketed after 31 July 2009. Health Claims Regulation, supra note 13, at art. 28(1). However, derogations are possible in cases of certain trademarks, brand names, or fancy names that may be construed as nutrition or health claims according to article 1(3). Id. at art. 1(3). Products bearing such marks or names may continue to be marketed until 19 January 2022 pursuant to article 28(2). Id. at art. 28(2). The ECJ stated, though, that this provision applies only to food, bearing a mark/name, which must be considered a nutrition or health claim within the meaning of the Regulation and which, in that form, existed before 1 January 2005. Case C-299/12, Green - Swan Pharmaceuticals CR, a.s. v. Státní zemêdêlská a potravináêská inspekce, üstední inspektorát, para. 37 (July 18, 2013), http://curia.europa.eu/. At the same time, with regard to trademarks and brand names and their relationship to common commercial communications under article 1(2) of the Health Claims Regulation, the Court held that such communication may constitute a trade mark or brand name, provided that it is protected by the applicable legislation, which is for the national court to ascertain. Health Claims Regulation, supra note 13, at art. 1(2) para. 32.Google Scholar

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112 Id. at para. 34. Therefore, a health claim may cover a description such as “easily digestible,” accompanied by a reference to the reduced content of substances frequently perceived by consumers as being harmful. Id. at para. 41.Google Scholar

113 The product in question contained a following statement on its packaging: “The preparation also contains calcium and vitamin D3, which help to reduce a risk factor in the development of osteoporosis and fractures.” Id. at para. 11. The national court asked whether a reduction of disease risk claim must necessarily expressly state that the consumption of a category of food, a food or one of its constituents significantly reduces a risk factor in the development of a human disease. Id. at para. 21. The ECJ gave a negative answer and stated that it is sufficient that that claim may simply give the average consumer the impression that the reduction of a risk factor is significant. Id. at para. 24.Google Scholar

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117 For example, claims suggesting that health could be affected by not consuming the food or making reference to the rate or amount of weight loss, etc. Health Claims Regulation, supra note 13, at art. 12.Google Scholar

118 Id. at art. 4.Google Scholar

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120 See, e.g., relevant health claims on glutamine, carnitine, whey protein, BCAA, creatine, etc. For detailed information see EU Register on Nutrition and Health Claims, Eur. Comm'n, http://ec.europa.eu/nuhclaims/?event=search (last visited Aug. 13, 2015).Google Scholar

121 Art. 1(2) defines dietetic foods as “[f]oodstuffs which, owing to their special composition or manufacturing process, are clearly distinguishable from foodstuffs for normal consumption, which are suitable for their claimed nutritional purposes and which are marketed in such a way as to indicate such suitability.” Dietetic Foods Framework Directive, supra note 33, at art. 1(2).Google Scholar

122 Id. at art. 1(3)(b).Google Scholar

123 Case C-107/97, Criminal Proceedings Against Max Rombi and Arkopharma SA, 2000 E.C.R. I-3367, paras. 37–39.Google Scholar

124 Dietetic Foods Framework Directive, supra note 33, at art. 2(1).Google Scholar

125 Id. at art. 2(2).Google Scholar

126 Id. at art. 3(1).Google Scholar

127 See Max Rombi, Case C-107/97 at para. 42 (“It is for the national court alone to ascertain whether the products at issue … are actually suitable for the nutritional purposes that Arkopharma claims they are, that is, whether they do facilitate weight loss or are, in the case of sportsmen, performance-enhancing.”). Consequently, the only way for national authorities to treat such products as normal foods is to establish that they are not suitable for the nutritional purposes claimed by the manufacturer or that they do not fulfill the particular nutritional requirements of one of the categories of persons referred to in article 1(3). Dietetic Foods Framework Directive, supra note 33, at art. 1(3) para. 43.Google Scholar

128 As a substance with nutritional/physiological effect. See European Advisory Servs., supra note 40.Google Scholar

129 Id. Google Scholar

130 Currently, L-carnitine is not granted an authorization for health claims related to weight-reduction. The main reason for this is the lack of scientific substantiation on such claimed effect of this product. Supra note 120. Still, such health claims may potentially become possible in case of proper scientific substantiation in the future.Google Scholar

131 Case C-107/97, Criminal Proceedings Against Max Rombi and Arkopharma SA, 2000 E.C.R. I-3367, paras. 37–39.Google Scholar

132 This category first appeared in Directive 89/398/EEC and reappeared later in Directive 2009/39/EC as a category, for which specific provisions, laid down by a specific directive, should have been developed over the years.Google Scholar

133 Dietetic Foods Framework Directive, supra note 33, at art. 2(2).Google Scholar

134 European Advisory Servs., supra note 40, at 71.Google Scholar

135 Dietetic Foods Framework Directive, supra note 33, at art. 9(2).Google Scholar

136 Id. at art. 9(3).Google Scholar

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138 See Meisterernst, Andreas, Foods for Particular Nutritional Uses—Death Sentence Passed for Sound Reasons?, 6 Eur. Food & Feed L. Rev. 315 (2011).Google Scholar

139 Impact Assessment, supra note 2, at 13.Google Scholar

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141 Meisterernst, supra note 138, at 319.Google Scholar

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151 “‘Food suitable for people with digestion disorders' (indication of suitability) and 'food that facilitates digestion' (health claim).” Meisterernst, supra note 138.Google Scholar

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153 Id., at 14.Google Scholar

154 Roethenbaugh, Gary, ESSNA Welcomes “Dramatic Changes” in EU law Covering Sports Nutrition, (June 14, 2013), http://www.triathlonbusiness.com/2013/industry-news/essna-welcomes-dramatic-changes-in-eu-law-covering-sports-nutrition/.Google Scholar

155 Regulation 609/2013 of the European Parliament and of the Council of June 12, 2013, On food Intended for Infants and Young Children, Food for Special Medical Purposes, and Total Diet Replacement for Weight Control, Repealing Council Directive 92/52, Commission Directives 96/8, 1999/21, 2006/125, and 2006/141, Directive 2009/39 of the European Parliament and of the Council and Commission Regulations 41/2009 and 953/2009, 2013 O.J. (L 181) 35.Google Scholar

156 Id. at recital 32.Google Scholar

157 Id. Google Scholar

158 Id. at recital 33.Google Scholar

159 Id. at art. 13. As of late August 2015, however, the report has not yet been submitted.Google Scholar

160 Id. at recital 11.Google Scholar

161 Impact Assessment, supra note 2, at 36–39.Google Scholar

162 The Regulation, with some exceptions, will apply from July 20, 2016. Regulation 609/2013, supra note 155, art. 22.Google Scholar