Back in 2014, an ad campaign by Lucozade was very eloquently entitled “Lucozade Sport vs Water.” In the video, two groups of athletes, one drinking water and one drinking Lucozade, are doing an endurance running test on a treadmill. Eventually, the “water only” athletes give up one by one, exhausted, while the Lucozade group keeps going strong. The reason is, quite simply, that Lucozade “hydrates and fuels you better than water.”
As it turned out, the Advertising Standard Authority had a lot of issues with that slogan. Although it was based on the authorised claim that “carbohydrate-electrolyte solutions enhance the absorption of water during physical exercise,” a dispute ensued between GlaxoSmithKline (the then owner of the brand) and ASA, around whether or not the wording in the ad departed too much from the authorised claim. The ASA eventually ruled that it did, and the ad was pulled off the air.
The details of the exchange between the two parties are quite technical, but they clearly illustrate one thing: in sports nutrition, claims are a big deal. Wherever there’s food marketing there are claims, and while that holds true for all types of food, it’s even more true for sports foods, considering the size of the market. According to a report from the European Commission, the EU retail market for the three categories of sports supplements, protein products, performance boosting products and sports drinks, grew by 11.2% between 2009 and 2014, reaching a total value of €3.07 billion in 2014.
The old (and messy) regulation of sport foods
Since the Lucozade ad dispute in 2014, things have changed a lot for sports foods. In July 2016, the EU changed their status and started to regulate them differently.
Up until then, sports foods were considered part of the ‘diet food’ category (technically, Foods for Particular Nutritional Uses, or PARNUT), together with foods for young children and for people with digestive problems or on low-calorie diets. The PARNUT group was subject to different regulatory requirements, as opposed to “normal” foodstuff, which fell under the horizontal rules of food law. This separation, however, had several loopholes.
To start with, it was not always clear whether a given sport food should fall under one set of rules or the other. That lack of clarity was often an advantage for market operators, who were relatively free to choose one law or the other, depending on convenience (also known as “legislation shopping”). Consumers, however, had no way of knowing whether the claims and statements they read on the label followed one set of rules or the other. To complicate things further, Member States could apply their own national laws to cover gaps in EU regulations. For these reasons, specific rules for sports foods have never been adopted.
The new status of sports food
In July 2016, the PARNUT law was abandoned and the concept of “Food For Particular Nutritional Use” was replaced by “Foods For Particular Vulnerable Groups Of Consumers.” The focus clearly shifted from the nutritional aspect of foods to the protection of specific categories of consumers. This shift was also aided by the diversification food products in the market place. Food companies started producing cereals fortified with B vitamins to help growing children or caffeine drinks that improve cognitive performance, two examples of “regular” foods that offer dietetic benefits.
The law was supposed to regulate for those vulnerable consumers relying solely on dietetic food sources to meet their daily nutritional needs. While small children and people with medical conditions had every right to be considered vulnerable categories, it was clear that sportspeople didn’t belong in the new group. In order to avoid regulatory limbo, sports foods and supplements needed to end up either in a new category, with special rules, or in the large group of normal foodstuff, and regulated by existing laws.
Surprisingly, the sports foods and supplements sector were not all on the same page: two of the main trade industry associations, ESSNA (European Specialist Sports Nutrition Alliance) and SNE (Specialised Nutrition Europe) had opposite views. On the one hand, SNE advocated for a special treatment of sports foods and was concerned that including them in the general law would cause a “lack of legal clarity to the detriment of sportspeople and the sector in Europe.” ESSNA however, had a completely opposite answer to the issue and was convinced that “specific regulations would hurt rather than help” the industry innovate, although the specificity of sports foods and supplements still had to be recognised in some way.
ESSNA’s position was apparently unusual, but understandable. For a sector like sports foods and supplements, reputation is important, and as EU food law expert Craig Simpson noticed, “At the moment it does seem like they are becoming a scapegoat every time in relation to doping, or in relation to safety incidents that are suffered by athletes.”
Your sports food label may be worth a check
How did the change to a new framework affect manufacturers of sports foods? Not much, actually. The biggest difference was the disappearance of “suitability statements,” whereby the manufacturer had to declare on the label that the supplement was suitable for its claimed nutritional purposes. A suitability statement was not a real claim (and therefore was not subjected to stricter regulations) but it could sound like one, and that constituted a significant grey area.
Still, sports foods manufacturers may want to take a closer look at their labels and see if they comply with the new law. When it comes to claims in food, single words matter a lot, even when they don’t seem to be a big deal. One example (although not related to the sports foods industry) is what happened to a Kellog’s ad, which was banned because the claim that their cereals are “full of goodness” and “nutritious” was not supported by enough scientific proof.
Eventually, a one-off re-labelling will be necessary for those foods and supplements that don’t meet the new standards. In fact, a preliminary study on the impact of the new legislation on sports supplements included relabelling as one of the extra costs.
All in all, a welcome and positive change
By bringing sports foods under the horizontal laws of food, the EU got rid of an unnecessary layer of ambiguity and complexity. That means more clarity for consumers and operators, and (if ESSNA is right), a better reputation for the sports supplement industry.
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This post was written by our retail specialist, Dave Hoogakker and originally appeared on Linkedin. Dave leads a team of labelling, language and translation specialists at K International.