7 Food for particular nutritional uses
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12099/11
+ ADDs 1-2
COM(11) 353
| Draft Regulation on food intended for infants and young children and on food for special medical purposes
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| Legal base | Article 114 TFEU; co-decision; QMV
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| Department | Health |
| Basis of consideration | Minister's letter of 17 May 2012
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| Previous Committee Reports | HC 428-xxxiv (2010-12) chapter 5 (19 July 2011) and HC 428-li (2010-12) chapter 6 (22 February 2012)
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| Discussion in Council | See para 7.8 below
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested; waiver granted under paragraph (3)(b) of the Scrutiny Reserve Resolution
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Background
7.1 EU legislation governing foodstuffs which are specially manufactured
to satisfy particular nutritional requirements was recently consolidated
by Directive 2009/39/EC (the "Framework Directive on dietetic
foods"). This enables the Commission to adopt detailed provisions
governing the composition, labelling, presentation and advertising
of five groups of foodstuff,[36]
and it also enables it to propose measures relating to food for
those with diabetes.[37]
Where no specific provisions are laid down for products regarded
as being for particular nutritional uses, the Directive says that,
before being placed on the market of any Member State, the manufacturer
should notify the Member State in question.
7.2 The Commission believes that an overall revision
of these measures is now necessary, in that the broad concept
of foodstuffs for particular nutritional uses has led to considerable
problems, with different interpretations by Member States of what
constitutes such a foodstuff. As a result, it says that an increasing
number of different foodstuffs are being marketed as suitable
for particular nutritional uses, thereby undermining the functioning
of the internal market and creating legal uncertainty.
7.3 It therefore put forward in June 2011 this draft
Regulation, which would abolish the concept of dietetic food,
and lay down general rules regarding the composition and labelling
applicable to three established and well-defined categories of
food identified as essential for certain vulnerable groups with
specific needs — infant formulae and follow-on formulae,
processed cereal-based foods and baby foods for infants and young
children, and food for special medical purposes. The measure would
not, however, apply to foods marketed as suitable for use by diabetics,
slimming foods, sports food and gluten-free foods, which the Commission
says are more appropriately covered by other relevant EU legislation.
The proposal would enable the Commission to maintain a single
consolidated list of substances[38]
which can be added to the foods covered by it; and it would also
replace the current notification procedure involving all 27 Member
States with a prior authorisation system at EU level.
7.4 As we noted in our Report of 19 July 2011, the
Government welcomed the clarification and simplification which
the proposal would bring, pointed out that it has been broadly
welcomed by consumer organisations, but said that the industry
was concerned about the exclusion of some foods, particularly
those for slimming, and has also pressed for the inclusion of
sports foods. It added that it had not yet produced a comprehensive
UK Impact Assessment, but would do so following a public consultation
in September 2011. In the meantime, it noted that overall the
proposal would "significantly" change the current situation,
and in particular that the need for manufacturers wishing to market
specialist foods to obtain prior authorisation at EU level could
result in large administrative burdens.
7.5 We commented that this was a highly technical
and complex area, which had made it difficult to identify the
precise nature of the changes or their significance. We therefore
said that we would await the Government's Impact Assessment before
seeking to take a further view, and would in the meantime hold
the document under scrutiny.
7.6 As we reported to the House on 22 February 2012,
we subsequently received from the Parliamentary Under-Secretary
at the Department of Health (Anne Milton) a letter of 8 February
2012, enclosing the promised Impact Assessment. She said that
respondents broadly welcomed the proposal to restrict the scope
of the measure, and to drop the concept of dietetic foods, though
some felt that the scope was too narrow and might not allow innovative
foods in certain areas. She added that this and other technical
aspects of the proposal would need to be addressed in ongoing
discussions, where, in order to minimise the burden on businesses,
the Government would negotiate sufficient transitional periods
for any necessary changes, for example in relation to the information
provided on labels. In the meantime, the Impact Assessment had
suggested that the proposals were unlikely to have a major impact
on either manufacturers or consumers, with a positive effect on
competition and growth, and dietetic foods no longer covered by
specific legislation continuing to be sold under more general
legal frameworks.
7.7 We were also told that the negotiations were
still at an early stage, but that, as the Danish Presidency was
hoping to secure a first reading deal in the European Parliament,
it would be necessary to be prepared for a potential vote in April.
We commented that, although the Impact Assessment had allayed
some of our earlier concerns, a number of issues were still under
discussion, and that the scope of the proposals could change as
the negotiations move forward. We therefore said that it would
be prudent to hold the document under scrutiny pending any further
developments, stressing that, if there was to be a vote in April,
we needed to have time to consider the proposals further.
Minister's letter of 17 May 2012
7.8 We have now received from the Minister a further
letter of 17 May, in which she says that her original intention
had been to provide an update on discussions following informal
trilogues scheduled for early June, but that the European Parliament
informed the Council last week that it would be progressing this
proposal to a second reading following a vote in June. As a result,
the Danish Presidency had asked Member States to agree a general
approach, with a vote in the Council expected on either 7 or 11
June. In view of the forthcoming recess, she has asked for clearance
(or a scrutiny waiver) in advance of those dates.
7.9 The Minister recalls that the Commission's original
proposal was based on a better regulation approach, and would
result in fewer products being regulated under this legislation,
and an opening of the market to a more innovative approach. She
says that the Council mandate now proposed represents a balanced
solution, which the UK is likely to support subject to further
discussion to ensure that suitable transitional periods are provided
for businesses to adjust to the new requirements. In particular,
she says that, if the proposed compromise were to be adopted following
further negotiation, it would resolve the current confusion in
defining a particular nutritional purpose food, clarify labelling
rules for low-gluten and gluten-free products (including foods
sold loose), and reduce the regulatory burden on businesses, with
more categories of foods being regulated under existing, more
general food law.
7.10 At the same time, she notes that there would
be areas of compromise from the UK's original support for the
proposal, relating to additional controls on foods intended to
replace the total daily diet for weight control and reports on
milk-based drinks and similar products intended for young children
and sports foods, with a further recommendation on the desirability
of specific legislation. However, she says it is clear that the
proposed general approach represents the best achievable position
at this point, and she is content that the burdens on business
have been mitigated as far as possible.
7.11 The Minister also says that this review accords
well with Government policy on Better Regulation in that it aims
to repeal existing regulations on slimming foods, gluten-free
foods and the export of infant and follow-on formula to third
countries, and to simplify the regulation of slimming foods, growing-up
milks and sports foods. In particular, limiting the scope of the
proposal would reduce the administrative burden for industry,
and, although there may be costs to businesses insofar as some
label changes may be necessary, the majority of products are unlikely
to need any change of labelling (and any such costs would be reduced
if there were to be an extension to the proposed two-year transition
period).
Conclusion
7.12 We are grateful to the Minister for this
further information, which suggests that many of the UK's earlier
concerns over this proposal are now likely to be met, and we note
that the Government supports the overall deregulatory approach
embodied in it. We have therefore considered carefully the Minister's
request that we should now clear the proposal, or grant a scrutiny
waiver in advance of the Council meeting scheduled for early June.
7.13 Given that there are one or two outstanding
issues, such as the length of the transitional period, we hesitate
to release the document from scrutiny entirely, but we are also
conscious that this is a complex and technical proposal, which
has been the subject of detailed negotiations, and where what
is now on the table incorporates an essentially deregulatory approach,
whilst maintaining certain controls. In view of this, we would
not wish to prevent the Government from agreeing to whatever may
be before the Council, if it judges it in the UK interest to do
so. We therefore agree to the Minister's request for a waiver
under paragraph (3)(b) of the Scrutiny Reserve Resolution. The
document remains under scrutiny and we would be grateful if the
Minister could inform us of the outcome of that meeting.
36 As a result, Commission Directives have been adopted
on infant formulae and follow-on formulae; processed cereal-based
foods and baby foods for infants and young children; dietary foods
for special medical purposes; foods intended for use in energy-restricted
diets for weight reduction; and the composition and labelling
of foodstuffs suitable for people intolerant to gluten foods.
However, compositional criteria have not been agreed for a range
of other dietetic foods covered by Directive 2009/39/EC, including
very low calorie diets and sports foods. Back
37
A Commission report in 2008 concluded that diabetics should eat
as healthily as possible from a variety of food for normal consumption,
and that there was no scientific basis on which to develop specific
compositional requirements for this category of food. Back
38
Such as vitamins and minerals. Back
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