In 2014, the adoption of the EU Childhood Obesity Action Plan highlighted a growing consensus among the Member States on the importance of addressing the risks posed by unhealthy diets to the health of European consumers, and to national healthcare budgets. The best way to address this risk is prevention.

However, despite this consensus, the EU’s ability to kick-start new major initiatives in this area remains limited – for a number of reasons.

First of all, the EU competence on health is confined to support, coordinate or supplement actions of the Member States (art. 6 TFEU). In fact, the Action Plan is a Member States’ initiative, which recommends a series of measures which can only be adopted at the national level.

Second, the main piece of EU legislation in this area – the Regulation on food information to consumers – has been adopted in 2011 and now the Commission is working on the necessary delegated and implementing acts.

The establishment of nutrient profiles, which is mandated by art. 4 of the Nutrition and Health Claims Regulation (1924/2006), is the only piece of work which still needs to be done. But this is a highly controversial dossier and so far the Commission has been reluctant to act.

The Parliament seems also reluctant to move in this direction. In June the JURI (Legal Affairs) Committee, tasked to adopt a report on the REFIT programme, voted on a paragraph which calls on the European Commission to review the scientific basis of the nutrition and health claims regulation and, “if appropriate, to eliminate the concept of nutrient profiles”.

National governments (i.e. their health ministers) seem to have a different opinion. In the conclusions of the Council on nutrition and physical activity of June 2014, member states invited the Commission “to establish nutrient profiles”. Similar positions were voiced also in a meeting held in early November between the European Commission and national experts, some of whom reiterated their support for the setting of nutrient profiles.

Meanwhile the Commission has published a Roadmap on the evaluation of the EU Nutrition and Health Claims legislation, which envisages a series of consultations in 2016 specifically on the issue of nutrient profiles, asking whether they are fit for purpose.

WHO interventionism

Unsurprisingly, the World Health Organisation (WHO), which is an “agency” of national governments, has taken a stance similar to that of the member states. In February 2015, the European section of WHO unveiled its recommendations on a nutrient profile model to help countries restrict the marketing of unhealthy foods and drinks to children. A month later, the WHO has issued a recommendation to reduce the intake of ‘free sugars’ in the diet to less than 10% of the total energy intake[1].

The WHO’s nutrient profiles model provides an international set of criteria to classify different types of foods and establish if they are healthy enough to be marketed to children. Obviously the WHO model does not affect the implementation of the EU’s nutrition and health claim regulation, and its recommendations do not have legal force. But certainly their existence exposes the gap in the EU policy framework and puts European industries and regulators under pressure.

In March 2015 the WHO adopted another report, “Using price policies to promote healthier diets”, suggesting that “price policies applied to food can influence what consumers buy, and could contribute to improving health by shifting consumption in the desired direction and supporting healthier diets”.

Again, the WHO steps into a field – fiscal policy – where the EU has no competence, to advocate in favour of direct government intervention to shape the diet of consumers and the environment in which they make their food choices.

While the EU is stuck on the nutrient profile issue, the WHO is emerging as an important forum to shape health and nutritional policies in Europe, advocating the adoption of more interventionist regulatory policies, rather than relying on voluntary or self-regulatory initiatives, led by the industry such as the EU Pledge. Be it through taxation, marketing restrictions or reformulation, the search for new policy option is on and the WHO is one of the key drivers.

Main challenges

From a business perspective this presents two main challenges.

Firstly, those business players who have bet heavily on the success of voluntary initiatives such as the commitments made to the EU platform for action on diet, physical activity and health (the EU Pledge being one of them) might find themselves poorly equipped to face this new situation. They will need strong arguments to prove that they are truly contributing to reduce obesity and that they are ready to comply with new more stringent (marketing) rules. Reformulation is also on the table and the incoming 2016 Dutch Presidency of the EU has announced its intention to push for reformulation.

Secondly, unlike the EU, WHO is under the control of its member states and their health ministries, and it responds to them alone. This leaves much less space for the input and consultation of industry and non-industry stakeholders. In particular, food industries generally do not have the habit of engaging with the WHO as much as they do with the EU.

This challenge is tempered by the inherent limits of the WHO action, as an intergovernmental organisation with no legislative or enforcement powers. It is up to national governments to put WHO’s recommendations into practice.

What does this mean for the industry?

For a company operating in multiple markets across Europe, this means keeping eyes and ears open in each capital to monitor and understand how the local policy agenda on nutrition and health might evolve, under the influence of WHO’s recommendation. It is also important to monitor the potential spill-over of a debate from one country to the other.

On many positions advocated by the WHO there is no central point of decision at the EU level. Companies are confronted with a highly fragmented regulatory landscape. Corporate government affairs teams need the resources and flexibility to intervene in multiple hot spots.

Yet, Brussels maintains its strong mandate to safeguard the proper functioning of the internal market. So all national initiatives that threaten it can trigger the intervention of the European Commission. In February 2015, for instance, the European Commission opened an investigation for illegal state aid on the 2011 Danish ‘fat tax’, scrapped one year later. The outcome of this case will teach an important lesson on how far national policymakers can push their regulatory agenda on nutrition.

[1] Guideline: sugars intake for adult and children