The benefits and drawbacks of the latest updates to Nutrition and Health Claims Regulations

On 20 February, the government announced some interesting changes to the way nutrition and health claims are regulated by publishing The Nutrition and Health Claims (England) (Amendment) Regulations 2024, which comes into force on 1 October 2024.

This article highlights the strengths and weaknesses of the updates to the regulation.

Background of health and nutrition claims

To date, non-compliant packaging is enforced by Trading Standards, who are often alerted to non-compliant products through consumer or competitor complaints or through their own spot checks. The threshold for Trading Standards enforcement is high and specific criteria needs to be met for the business concerned to be taken to court, where non-compliance can result with a two year custodial sentence and/or a fine. 

The lack of funding at local authority level and the resources required for enforcement means that it is rare for Trading Standards to enforce non-compliance, resulting in an increase in products that frequently make claims that are not authorised and are therefore illegal. 

In addition to Trading Standards, the advertising of a food product, online and in other conventional forms of advertising, is regulated by the Advertising Standards Authority. This government department investigates all advertising complaints, including those where health and nutrition claims are being used illegally. However, aside from a public ruling and a request that the business cease use of any unlawful health and nutrition claims, it cannot take legal enforcement action. Other future regulatory changes may give the Competition and Markets Authority powers to deal with non-compliant advertising. 

How have the Nutrition and Health Claims Regulations changed?

Under the new regulations, from 1 October local Trading Standards will be able to issue an improvement notice, a formal instruction issued by an inspector which orders businesses to resolve its breach of health and safety laws. The new regulations will make it a criminal offence if a business does not comply with an improvement notice and prosecution will ensue. 

The regulations will enhance the powers available to Trading Standards in an attempt to enhance compliance with health and nutrition claims on packaging. While this is to be applauded and could benefit businesses who invest in their product and make accurate nutritional and health claims, there could be some unintended consequences.

The benefits of the new changes:

• It will be less of an administrative burden on Trading Standards, as the threshold for issuing an improvement notice will be lower than bringing court action.
• Trading Standards can act more readily – currently, unless enforcement action is taken it can only ask a business to take voluntary action.
• It will avoid costly and burdensome court proceedings – but food businesses could still face court action if do not comply.
• It will create a more level playing field if compliance is achieved through improvement notices.

The drawbacks of the new changes: 

• It won’t be an alternative to being prosecuted in court as enforcement action can still be taken.
• It could increase the regulatory burden on businesses due to the lower threshold for intervention.
• Instead of Trading Standards engaging with business to identify how compliance can be met, it can simply issue an improvement notice.
• There will be ongoing compliance costs, potential increased legal fees for businesses dealing with improvement notices.
• There will be an increased regulatory burden and enhanced enforcement action.
• A regulatory impact assessment has not been conducted to see how it would impact industry.

Kristy is a specialist in food and regulatory law and advises on food product labelling and advertising, if you have any queries or would like to know more about nutrition and health claims, please contact Kristy Coleman.