The proposed regulation on nutrition and health claims, drawn up by the Commission in 2003, did not make it to the recent parliament's agenda largely as a result of strongly opposing views on two main issues - the scope of claims allowed and the role of nutrient profiles, or whether a food's sugar and salt intake should determine whether it can carry a claim.
However a schedule drawn up by the EU Council of Ministers committee of permanent officials (Coreper) shows that the Netherlands wants a deal on this legislation by the end of its semester.
The schedule shows that the Council is looking to reach a common position at its meeting on 6-7 December. While this position cannot officially be adopted prior to a reading in parliament, those involved in discussions on the law say this move anticipates parallel progress by members of parliament.
European laws on health claims would have a far-reaching impact both on food supplements and functional foods, as well as the mainstream food industry. While it is difficult to define the financial advantage to products carrying a health claim, it is widely acknowledged that in today's highly competitive food industry, a health claim can significantly boost a product's marketing success, especially given the current 'mega-trend' for self-medication.
However the draft proposal initially released by the Commission presented major problems for the food industry. Article 4 proposed that all nutrition and health claims be subject to the nutritional profile of the food, suggesting that if the total amount of fat, saturates, sugar or salt contained was above recommended levels, the claim would not be permitted. It also envisaged prohibiting all claims for weight loss, children's foods and psychological benefits.
The lack of consensus on its scope and terms led to more than 600 amendments to the original draft before it was even debated in parliament, a number 'rarely' seen, according to European officials.
The Commission is expected to rework this draft before it reaches the newly elected MEPs and industry is hoping to see amendments benefit from last year's heated discussions. However the European Council, known to be less supportive of industry than the parliament, is also likely to offer a 'more liberal' position, suggests Pedro Vicencte Azua, executive director of the European Health Products Manufacturers' (EHPM) association.
"The Dutch presidency is trying to move quickly on this and will introduce some more liberal elements," he said, although he noted that this could in fact serve to delay the decision-making process.
"For example, the Dutch are trying to draw up a list of functional claims to be agreed by parliament, rather than following the proposal's terms that required member states to send in a national list which must then be approved by EFSA," he explained.
Progress on the Council's common position is "their way of influencing the process", added Vicente Azua. "The Dutch have realized that they need to move closer to the industry to make headway on this issue."
Nevertheless, a first reading in parliament, even if it does happen by the end of the year, does not guarantee consensus on the regulation. But it will bring the regulation nearer to law, a law that advertising authorities are also calling for.
"The competition is so fierce in the food industry that companies are constantly being pushed into making claims for health. And in all sectors, not just in the food industry, the law doesn't keep pace with new product development as it has not been designed to deal with it," commented David Pickering, the UK Trading Standards Institute's lead officer of food, in a recent interview.
"This [a European regulation] would make our lives as enforcers much easier. It is quite rare to find a food these days without a claim somewhere that it is good for you," he said.