The Court of Justice of the European Union investigated a case involving Upfield Hungary, maker of Flóra ProActiv, a 35% fat vegetable spread containing added plant sterols. The product also has vitamin A and D added.
Upfield, like most other companies within the vitamin fortified foods category, lists the ingredients vitamin A and vitamin D simply as ‘vitamin A’, and ‘vitamin D’, without explaining which of the permitted chemical forms of vitamins it uses.
For example, under EU law (Regulation No 1925/2006), four forms of vitamin A can be used: retinol, retinyl acetate, retinyl palmitate or beta-carotene. Two forms of vitamin D can be used: cholecalciferol or ergocalciferol.
However, Hungarian food health authorities believed that the ingredient list was wrong and that the specific chemical forms should be listed by Upfield.
After a few years of litigation, the CJEU was called to make a decision.
It has ruled ultimately in Upfield’s favour. Where a vitamin is added to a food, it said, this needs to be indicated in the list of ingredients on the labelling. But, importantly, it added: “where a vitamin has been added to a food, the list of its ingredients does not have to include, in addition to such a name, the name of the specific vitamin formulations used.”
Do consumers want general or specific information about vitamins in food?
We know the food industry is witnessing a shift in attitude from both regulators and consumers, particularly high earners and younger generations, who are increasingly making the link between diet and health.
So as food innovators develop their reformulation and fortification plans, the case begs the question: will a lack of transparency about specific vitamin formulations hinder growth opportunities in this sector? Or will this kind of very detailed information go over the heads of everyday shoppers?
The court said that designating vitamins consistently under names such as ‘vitamin A’, ‘vitamin D’ or ‘vitamin E’, and not distinguishing between, say, beta carotene or retynil acetate, ensures that the information provided to consumers is “accurate, clear and easy to understand”.
But the ruling is “absurd”, believes Luca Bucchini, managing director of Hylobates Consulting, in light of the differences in bioavailability, tolerability and source (not all vitamins are vegan, for example) between vitamins. “In reality, there are differences between chemical forms of vitamins,” he stressed to FoodNavigator.
There are other advantages to stating the chemical form of the vitamin used. It may provide clues as to its animal or plant origin, which may interest consumers. Authorities can also check more easily whether the authorised forms are used or not. For example, all forms of vitamin A except beta carotene are banned in Switzerland.
Less transparency = less trust?
What’s more, consumers already need to know the distinction between the customary names of additives. E442 and E443 are both emulsifiers, for example, but the latter is not approved in the EU. Similarly, EU law requires the specific names of food colours — say, curcumin or chlorophyll, to be specified. So why, pondered Bucchini, is this position not applied to vitamins too?
On top of this, there is now no legal reason not to conclude the ruling won’t apply to food supplements as well. Bucchini fears that under a stringent interpretation of EU food law the chemical names such as beta-carotene could now be banned from food and food supplements’ ingredient lists.
Finally, the court’s assumption that specific information about vitamins may be too complicated for shoppers to understand is counterproductive, he contended.
“Consumers are probably more familiar with beta-carotene than with many specific food additives,” said Bucchini.
“I think consumers may have limited trust in the ability of fortified foods to provide the vitamins and attended benefits, having more trust in food supplements at this stage. Less transparency does not seem the recipe to more consumer trust.”
The court wants to avoid contradictory information, not transparency
The court’s ruling could lead to “detrimental effects if it is applied too strictly”, agreed Nicolas Carbonnelle, Global Head of the Food & Beverage sector group at international law firm Bird & Bird, though he added that overly stringent interpretations are “not supported by the ruling itself.”
For example, he believes the court’s ruling does not advise against specifying the formulation used at all, it requires that the information provided is consistent across list of ingredients and nutrition declaration.
“It seems reasonable to infer that the consistent provision of detailed information in the list of ingredients and the nutrition declaration will not be regarded as generating such confusion,” he told FoodNavigator.
“Indeed, while it rightfully states that the applicable regulations do not require the indication of the vitamin or mineral formulation used in a fortified food, the ruling advises against it in certain cases, namely when the formulation is identified in either the list of ingredients or the nutrition declaration, not both.”
Are people who buy fortified products ‘average consumers’?
That said, he agreed that people who buy fortified foods are typically more likely to demand as much information about the product as possible.
“I find [the ruling] striking at a time when consumers have access to more information than ever and might precisely demand as much detail as possible about the composition of the fortified foods they consume,” he said.