Switzerland faces a potential legal breach to its ban on disease prevention properties claimed for foods in a case pitting the country’s dairy producers against the federal health ministry. The national ban on medical claims for a food is under threat in a legal system that has so far awarded two contradictory interpretations at regional level. Warren Giles examines the latest case of confusion dogging functional foods.
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A final ruling, expected in the New Year, will have far reaching implications for the future of functional foods in Switzerland and is being watched with interest by the nation’s food companies.
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MILK MAKES BONES STRONG |
The legal case centres on a television commercial run by the Swiss Milk Producers in 1999. A long-running series of advertising campaigns and billboards have featured a Holstein dairy cow, nick-named “Lovely,” performing a series of tricks including knocking out a boxing kangaroo during the Sydney Olympics.
However, the heart of the issue is not the image but the slogan used in conjunction with it. The television campaign last year showed a karate-chopping Lovely and claimed that drinking milk prevents osteoporosis.
Health claims banned – but only in an edict
In common with neighbouring EU Member States, Swiss regulations specifically prohibit such a claim. This reflects the general confusion prevailing over function foods – most governments have so far opted out of specific legislation in favour of a blanket prohibition of health claims on food until further research is completed.
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MILK MAKES BONES STRONG |
However, the prohibition is only in the form of an edict, which under Swiss law can be issued by the seven-member strong executive, the Federal Council. Drawn together from different political parties, this national cabinet has the power to set out certain measures without the formal ratification of parliament.
The existing edict says that labelling cannot carry references to treatment, prevention or cures. References to slimming are also outlawed.
However, at a federal or national level there is no ban on medical claims. It is this contradiction that has given rise to the legal confusion.
Court cases in Zurich and Bern cantons delivered verdicts in August and last December, one each in favour of the health ministry and the milk producers. The Swiss federal health ministry now wants the national courts to rule definitively on which is correct.
“It’s important at an administrative level, especially for functional foods, to establish what you can say in this context” said a legal official at the federal health ministry. “We’re not questioning the use of the cow,” he added, “only the slogan in the campaign.” A final ruling is expected early next year according to ministry legal officials.
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MILK. THE NATURAL HIGH |
Switzerland’s administrators have been trying to keep up with commercial developments in the vibrant functional food sector and in June the health ministry published a list of recommended or model claims for vitamins and minerals. The list was designed to help accelerate the approvals process for functional or novel foods. Currently, a new or novel product must be approved by the health ministry and its assessment of health claims often requires novel testing and research.
However, the model list describes food functions, rather than health claims specifically. For example, the list suggests that manufacturers refer to calcium as “an indispensable mineral for the constitution of healthy bones and teeth.”
Manufacturers erring on the side of caution
Currently, claims made by other manufacturers for calcium are cautious. Nestlé labelling says that its LC1 probiotic yoghurt “reinforces your natural defences,” and Wander (a division of Novartis) claims that its Aviva fruit drinks, which include calcium, “maintain a healthy bone mass.” Similarly, Emmi’s “Energy Milk,” claims to supply “half the daily needs in calcium and vitamins E, B1, B2 and B6.”
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MILK ON TOUR |
Since 1995, Switzerland has also liberalised the sale of vitamins and minerals to allow manufacturers to make products in tablet, powder or capsule form that would have until then been classified as medicines because of their form.
In the meantime, the Swiss Milk Producers have resorted to less controversial claims such as “milk fortifies bones,” or “milk makes you big and strong, forever,” or the even less specific “milk does miracles.” Nevertheless, the advertising has not changed its underlying message on osteoporosis. For example, magazine adverts showing Lovely now state that, “Calcium contained in milk also helps to prevent fractures due to age. One woman in three today suffers from osteoporosis in her fifties and the number of men affected by this disease is on the increase.”
The future of Swiss functional claims appears largely to rest on this case. If the health ministry loses, it could press the government for more sweeping federal laws to be enacted by parliament. In the meantime, Swiss regulators are trying to aim at standards based on the European Union’s framework, and they hope that new regulations from the Commission in Brussels will clarify their target.
By Warren Giles in Geneva
Relevant reports from the Knowledge Store
The International Market for Functional Dairy Products
Functional Foods – International Regulatory Trends and Developments
Key Players in the Global Functional Foods Industry
