Health claims for botanicals at the ACC: a disclaimer breakthrough!

In our NEWS 2015-4, we already wrote about the strict position of the Advertising Code Commission (ACC) regarding botanicals that are brought to the market as nutritional supplements. Since the European Claims Regulation, only specific health claims approved by the European Commission after being adviced by EFSA (European Food Safety Authority) for an ingredient are permitted. Botanicals have been put on hold since the introduction of the Claims Regulation. The authorities and the politicians still have not decided whether health claims for botanicals can be proven by traditional means. This temporary status (still) allows health claims for botanicals for ingredients which have had an approval application submitted to the EFSA. This saves botanicals from being banned as long as no decision is made. That is also the practice in the Netherlands, but not at the ACC. The ACC policy has, up until now, been that for health claims permitted by the on hold policy, advertisers must submit scientific evidence. If that is unsuccessful, then there may be deception involved – but, luckily, there seems to have been a change of heart to some degree. In the most recent judgment from the Board of Appeal (BoA), it seems that deception is still the point of departure for the ACC. Just because a claim is on hold, it does not mean that it is (temporarily) permitted, according to the BoA. However, the BoA did offer an option to make claims for botanicals. The BoA made a proactive suggestion: deception can be averted by the use of an “on hold disclaimer”. So the advertiser can make the claim, provided it is accompanied by a notice stating that an acceptance procedure is pending. This way, the consumer knows that the claim is conditional in character and is not being misled. Of course, this is only valid for products with herbs in effective doses as stated in the associated EFSA dossier submitted. As far as we are concerned, this is still too strict, but it is a big step in the right direction. The solution offers – at least in theory – the potential to communicate the health effects of botanicals. So: for example, a clearly legible asterisk with text: ‘awaiting approval by the EFSA’ or ‘EFSA approval procedure pending’. A (little) disclaimer breakthrough.

Ebba Hoogenraad & Bram Duivenvoorde