The proposal aims to create "more proportionate" enforcement by allowing food companies to improve their product adherence to NHCR before authorities enforce fines and/or imprisonment.
However, some experts have pointed out that current enforcement of the NHCR is already weak enough, without improvement notices in place, due to a lack of commitment to prosecution, as well as the current volume of non-compliance.
T C Callis, author and food standards, labelling and nutrition consultant tells NutraIngredients: “The new proposals will make absolutely no difference whatsoever. It is highly likely that local authority enforcement will continue to leave ‘enforcement’ of the use of claims in advertising to the ASA.
“It is possible that local authority enforcement might become more involved in claims being made on packaging with the use of improvement notices, but the horrific lack of resource that more local authority enforcement is currently struggling under means that it is unlikely to be high on their priority list - getting a claim wrong is generally not going to cause harm,” she adds.
Dr Mark J. Tallon, managing partner and founder of Legal Foods, stated on LinkedIn that reformations to the legislation were definitely due, but pointed out: "Who writes these proposals? Clearly no one who actually works on the ground where almost no enforcement occurs, even when TSOs are told directly of breaches.
"If you are going to reform then reform. Don't come up with pointless options that won't result in a level playing field with consistent enforcement!" he stressed.
He added that there are already options for informal action, including providing reports to the offending food business by a public analyst or referring them to the ASA.
He emphasised: "But most Trading Standards Officers (TSOs) will do nothing, even with repeat offenders. Many that breach health claims also don't comply with multiple other regulations that could form part of a prosecution e.g., Article 7 of FICs."
Barriers to adherence
Callis explains that the current NHCR and its associated guidance is complicated and restrictive, leading to a lack of enforcement by local enforcement officials.
“Because it is so complex, not many magistrates, who would likely be hearing the case, would understand the intricate details of a prosecution under the NHCR. All of which means it would take a lot of time to get a case to court and a lot of time working through the case - and time is money, something most local authorities are woefully short of,” she adds.
She points out that the complications also result in a lack of adherence by food companies.
She explains: “Despite a requirement in the legislation that the claims should be understandable to the average consumer, many are very far from consumer friendly. For example, would the average consumer grasp the relevance of ‘calcium has a role in the process of cell division and specialisation’?
“This means that companies try to push boundaries and often get it wrong and get slapped by the ASA - because local authority enforcement doesn't happen. Or claims don't get used because they are simply not practical. So, a lot of the advertising that uses claims is simply more of the same, resulting in an environment which is extremely difficult to be innovative, or to stand out from the crowd.”
Kirsty Coleman, solicitor at Greengage, tells Nutraingredients that the lack of technical expertise, as well as the perceived costs of legal advice also act as significant barriers to adherence by companies.
She emphasises: “The general perception is that legal advice is expensive but for discrete one-off advice on food law, the reality is that it isn’t and is worth getting it right. Food law is complex and extends beyond just how a food product is packaged and includes all forms of marketing, from socials to websites.”
However, Coleman says that the proposals could improve the clarity of the regulations and subsequently enhance company compliance. In addition, she suggests that the improvement notices may provide a more efficient way to address non-compliance and allow businesses to make necessary adjustments promptly.
She adds: “Strengthening the role of local enforcement officers (which are currently significantly underfunded) might allow them to monitor and regulate businesses more effectively within their jurisdictions, potentially enhancing overall compliance. However, adequate funding is needed to support this fully.”