martes, 3 de enero de 2017

The Regulation of Food Advertising: a Striptease in Instalments (V): The Regulation (EU) 1169/2011 and the responsibility of advertisers.

The Regulation of Food Advertising:  a Striptease in Instalments (V)  The Regulation (EU) 1169/2011 and the responsibility of advertisers

 by Francisco Ojuelos and Julio Basulto. Translation by Ricardo Mena.

Original text in Spanish (The links lead usually to pages in Spanish)

This is the penultimate instalment of this series of six (here the first, the second, the third, and the fourth) devoted to the study of the norms (statutes, regulations, etc.) that regulate advertising and comercial presentation of foods in Spain. A great part of what we have analysed applies in the rest of the European Union because the most significant norms are supranational or are based on them.

Brief review

To come here, the way has made us pass, let us remember, through all these steps:

I. Introduction.
II. Context. The applicable norms:

1) General Advertising and consumers.
2) Unfair Practices.

3) “Specific” unfair practices on food advertising.

4) The Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods.

We already know that all these norms guarantee the rights to receive a correct and truthful information (that it be true) and that, furthermore, it does not confound us, for example, by making us believe that a food is healthy when overall it is not so.

We have also discovered that the legislation establishes that for a food to contain nutritional statements (for instance, “source of fiber”) or staments of healthy properties (for example, “it reduces cholesterol”) the European Food Safety Authority (EFSA) must be able to check and allow that there is solid scientific evidence about it. If you do not trust us, you can read the review of the Spanish Agency for Consumer Affairs, Food Safety and Nutrition (AECOSAN) in this link:

The following points remain, then:

5. The Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers.

6. The responsibility of advertisers and their agents.

III. The advertising aimed at children.

IV. Conclusions.

Today we are going to get into points 5 and 6, and we will leave for the following (and final) instalment, the food advertising addressed at children and the conclusions. But before that, a brief but needed parenthesis.

Parenthesis: authorised statements

We allow ourselves to make a pause, before moving on, in order to show where to find those statements allowed by the EFSA to this date, in case it is of any interest to some reader.

These readers have nutritional statements authorised in the Annex of the Regulation CE No. 1924/2006 and in the Regulation CE No. 116/2010, but they can consult them here:

Concerning the statements about healthy properties (“any statement that affirm, suggest or imply that there is a relation between any food category, a food, or one of its constituents, and health”, according to the AECOSAN), the 222 ones authorised up to 2012 (out of the 2.758 requested, that is, the 8%) appear in the Regulation (UE) No. 432/2012 (1). If the statements are based on recently obtained scientific evidence and/or include a solicitude of data protection subject to industrial property rights, a different procedure is followed different from the authorisation. You can consult the opinions of the EFSA on this question (in the great majority of cases, negative) here:

Finally, if the statements deal with the reduction of the risk factor of a sickness or to the development and health of the children a different procedure from the authorisation one also follows. In this case, the opinions of the EFSA are available here:

All of them, in any case, can be consulted in this invaluable tool of the European Commission:

Some previous words on the Regulation 1169/2011 (EU)

As we have justified before, to be able to use the above statements (nutritional or about healthy properties), the food as a whole must have a suitable nutritional profile (that is, that it do not subtract on the one hand what supposedly it would offer on the other). On this point, we have been able to check how the European Commission fails to observe (it is six years late by now) its legal duty in establishing those nutritional profiles. Because of this, although the norm do not exist and be in force, the food industry identifies and uses the supposed void to create advertising in many cases opposed to the Law. This is so because, at least in Spain, there are other Acts that prevent us to believe that a food is suitable in order to achieve an end (to improve health) when that is not true.

Let us see what happens in the EU with the analysis of the last supranational norm of importance to which we have made a reference at the beginning of this part. 

This new instalment, with which we will finish part II (“Context. The applicable norms”), begins, therefore, with a reference to one of those European norms, the Regulation 1169/2011 (EU) of 2011. Its object is the food information offered to the consumer

5) The Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers.

In the same way the the ocean does not end in the line of the horizon, the European regulation with regard to food advertising is not spent in the Regulation 1924/2006: the Regulation 1169/2011 devotes specifically to the question some of its articles. 

In point 20 of the antecedents of the norm is specified the consideration that the [f]ood information law should prohibit the use of information that would mislead the consumer in particular as to the characteristics of the food, food effects or properties, or attribute medicinal properties to foods. To be effective, that prohibition should also apply to the advertising and presentation of foods. (2)

Therefore, the Regulation of 2011, does not come to regulate the same thing than the Regulation 1924/2006, but to establish a new frame. All information offered to the consumer, including advertising, must be legal, that is, accurate, exact, in accordance with the truth (from the DRAE), according to article 7 of this Regulation (3). The reference to the qualities that are in this article of the European norm are akin to the proper character of article 5 of the Spanish Unfair Competition Act. 

The question is, in short, to avoid the inducement to error, the biased or fallacious information and to facilitate that the consumer take a buying decision in accordance with his or her aims: if the consumer wants to look for his or her children, he or she should not choose a biscuit because it bears the seal of some medical association, for instance (4), for biscuits are food with a nutritional profile that by no means we can qualify as “healthy.”

The example that we mentioned in the former “instalment” comes to mind now. The question is not that one has to judge whether eating biscuits sporadically within the frame of a diet (a model on the rest) is compatible with a “healthy nutrition”: that point, which is arguable, is framed in another debate. The question is whether, in the act of choosing and buying a product, the veiled advertising on the healthy “plus” that is added by a seal, the consumer has received an accurate, suitable, proper information or that, even being accurate, by its content or presentation induces or may induce some addressees to error, being susceptible of altering their economic behaviour.

If the formal use of a nutritional statement, of healthy properties, of an “endorsement” or, simply, of the indication of the existence of a collaboration can, in some measure, have the appearance of legality, the goal of it all is, in our opinion, to determine or influence on a buying decision that tries to choose a healthy option. It is, again, in our opinion, an attempt at covertly attributing a property, that one of being the most healthy one than any other common biscuit, on the one hand and, on the other, to make it when the type of food –a biscuit, pastries in the end (5)– is included in those types that have a nutritional profile whose intake is advisable to avoid or to reduce.

The norm is imperfect (6) and a lot remains to be done, of course, but the confessed tendency is the one we have so far, although it be persecuted with mildness due to the exercised pressure taken by contrary economic interests.

Opinion of doctor Margaret Chan, director of the WHO

As we have just mentioned that there are interests that press against a regulation that benefits the consummerʼs health, we want to share the opinion that on this particular holds the very same doctor Margaret Chan, general director general of the World Health Organization. We transcribe the opening address she gave on June 10, 2013, during the 8th World Conference on Health Promotion (Helsinki, Finland):

“Today, getting people to lead healthy lifestyles and adopt healthy behaviours faces opposition from forces that are not so friendly … Research has documented these tactics well. They include front groups, lobbies, promises of self-regulation, lawsuits, and industry-funded research that confuses the evidence and keeps the public in doubt. 

Tactics also include gifts, grants, and contributions to worthy causes that cast these industries as respectable corporate citizens in the eyes of politicians and the public. They include arguments that place the responsibility for harm to health on individuals, and portray government actions as interference in personal liberties and free choice.

This is formidable opposition. Market power readily translates into political power. Few governments prioritize health over big business. As we learned from experience with the tobacco industry, a powerful corporation can sell the public just about anything. 

Let me remind you. Not one single country has managed to turn around its obesity epidemic in all age groups. This is not a failure of individual will-power. 

This is a failure of political will to take on big business. 

I am deeply concerned by two recent trends. 

The first relates to trade agreements. Governments introducing measures to protect the health of their citizens are being taken to court, and challenged in litigation. This is dangerous. 

The second is efforts by industry to shape the public health policies and strategies that affect their products. When industry is involved in policy-making, rest assured that the most effective control measures will be downplayed or left out entirely. This, too, is well documented, and dangerous. 

In the view of WHO, the formulation of health policies must be protected from distortion by commercial or vested interests.” (7)

6) The responsability of advertisers and their agents.

With this sixth and last point of heading II, which we have called “Context. The applicable norms”, we finish the review we wanted to do on the norms related with food advertising, with the exception of the one addressed to children, which we will deal with, together with our conclusions, in the following instalment, which will be (we do not know if fortunately or unfortunately), the last.

Let us try solving then the question that raises the statement of this point: what responsibility falls, or should fall, to the advertisers and their agents? The answer, which offers us no surprise whatsoever, is also in the Unfair Competence Act (No. 3/1991, of 10 January). Against unfair competence actions, including illicit advertising, says the Act in his article 32, a series of actions follow. The responsibility –passive legal capacity– (8) is established in article 34 (our emphasis):

1. The actions envisaged in Article 32 may be brought against any person participating in or ordering the unfair practice in question or who has cooperated in its performance. However, in the case of unjust enrichment, action may only be taken against the beneficiary of the enrichment

2. If the unfair practice is performed by workers or other collaborators in the discharge of their contractual duties and obligations, the actions envisaged in Article 32 (1), numbers 1 to 4 must be taken against the main party. Civil Law provisions shall prevail as regards compensation for damages and unjust enrichment. (9)

The clarity of the precept requires few interpretations, in our opinion. Paragraph 2 seems to refer to someone who has some kind of dependence relation with the main parties, to whom the first paragraph refers to. In addition to what seems clear in the Act, it seems hard to imagine that the contracts for the production of advertising do not include a repayment clause of hypothetical monetary responsibilities derived from any possible claim, by any title: the person who acts in an advertising offering his or her image is subject to the advertiserʼs instructions.

Nevertheless, the scientific divulgation in the food and dietary sector promotes each day that some types of behaviours be unmasked and portrayed by their lack of honesty for a great number of consumers, a point this one that, we hope, will incide too in the lack of effect of unlawful advertising, in a not too distant future (10). While we were writing these lines, in fact, something has happened that allows us to illustrate what we were referring to with that “unmasking”: the company Tiger attached an infusion, until November 28, with the healthy statement “energetic.” A warning in Twitter was enough for that company to answer in the following manner: “We have informed the Institutional department about the incident and a change of label is in process. Thank you very much.” You can check it in this link:

Kind regards and see you soon.


1. Regulation (EU) No 432/2012 of 16 May 2012, establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health.

2. Translation at:

3. Article 7. Fair information practices.
1. Food information shall not be misleading, particularly: 
(a) as to the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production; 
(b) by attributing to the food effects or properties which it does not possess; 
(c) by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics, in particular by specifically emphasising the presence or absence of certain ingredients and/or nutrients; 
(d) by suggesting, by means of the appearance, the description or pictorial representations, the presence of a particular food or an ingredient, while in reality a component naturally present or an ingredient normally used in that food has been substituted with a different component or a different ingredient. 
2. Food information shall be accurate, clear and easy to understand for the consumer. 
3. Subject to derogations provided for by Union law applicable to natural mineral waters and foods for particular nutritional uses, food information shall not attribute to any food the property of preventing, treating or curing a human disease, nor refer to such properties.
4. Paragraphs 1, 2 and 3 shall also apply to: 
(a) advertising; 
(b) the presentation of foods, in particular their shape, appearance or packaging, the packaging materials used, the way in which they are arranged and the setting in which they are displayed.–Translation at:

6. The food information that must be given to the consumer from 2014 in the European Union, Revista CESCO de Derecho de Consumo, No. 8/2013:, Ana Carretero García, Profesor of Civil Law for the University of Castilla-La Mancha: “In theory, the Regulation aims to harmonize and organize in a systematic way the information that producers must give to consumers on food products, but also it is  necessary to reveal its deficiencies, for many important aspects remain unsolved, to be resolved in the future or in the hands of member States (something clearly contradictory with an harmonization process aimed at offering legal security)”.

8. Passive legal capacity is, very briefly, the quality through which a physical or legal person can be, in relation with a particular issue, the defendant in a judicial proceedings, that is, can be subject to a judicial proceedings as the part to whom is being claimed or reclaimed. Active legal capacity is the capacity to sue or claim.

10. In this study we analyse regulations, not jurisprudence, but it is not superfluous to remark here that there are judicial pronouncements that attribute a direct responsibility to third parties who are not strictly speaking the advertiser, like, for instance, the media in which it is advertised, as the Judgement of 17 June, 2011, of the Audiencia Provincial of Madrid, Sección 28ª, Appeal No. 455/2010, Judgement No. 208/2011, whose dictum is available in the first of the three instalments addressed to advertising in Courts: While it is true that the legal title invoked in these cases (also the one of the Judgement of the Juzgado de lo Mercantil No. 6 of Madrid, Proceedings No. 817/2013, of 18 June, 2014) is the one of article 7.2 of the Royal Decree 1907/1996, that expressly declares it applicable, the said precept does not directly include a clause of imputation of responsibility, so that the ultimate ground of that imputation lies in the ilegal character of the judged advertising. It is not the same thing, in our opinion, that a famous person confounds the public by saying that the coffee is delicious, without being so, as confounding the public by attributing a beneficial effect to a not recommended food, knowing the truth. The latter, being also reproachable ethically, affects public Health and many peopleʼs health particularly, and does so to the detriment of many purses (who sustain the public Health system with our taxes) to the benefit only of his or her own (purse).

domingo, 12 de junio de 2016

The Regulation of Food Advertising: a Striptease in Instalments, (IV). The applicable norms, point 4. The Regulation (EC) 1924/2006.

The Regulation of Food Advertising:
a Striptease in Instalments, (IV)

The applicable norms, point 4. 

The Regulation (EC) No 1924/2006.

        by Francisco Ojuelos and Julio Basulto. Translation by Ricardo Mena.

Original text in Spanish. The links lead usually to pages in Spanish. 

In the last instalment, 3rd of the series (here the 1st and 2nd), we come to the conclusion that consumers, that is, the public to whom is addressed the greatest part of food advertising and its commercial presentation, have the following rights:

–To receive a correct and accurate information, by applying the Consumers Act (LGDCU).

–That such information, even when it be correct, should not lead us into error (they talk of mere probability), by its content or presentation, with regard to its benefits, its characteristics, its proper character (in the former “instalment” we stressed the capital importance of this question) or the results that may be expected from its use. Let it be noted, by the way, that we, mere mortals, have not enforced these conditions, but that they were laid down by the Safe Food and Nutrition Act and the Unfair Competition Act, which are the ones that establish these obligations on all advertirsers. 

We have come, following the schema we had set up, to point 4 (1). You will see how comic it all is.

4) The Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods.

4.1 Importance of this important Regulation (allow us the redundancy).

This regulation, which is European, is one among those that regulate food presentation and advertising in Spain, according to the Spanish Act on Food Safety and Nutrition. Let us remember: besides declaring applicable the Royal Decree 1907/1996 (2), of 2 August, on Advertising and Commercial Promotion of Products, Activities or Services with a supposed healthy goal (we suggest you to read footnote 2 so that you understand the importance of this Royal Decree), the other cited norm in the Food Safety and Nutrition Act on food advertising is this Regulation (EC) No 1924/2006. Take a seat and fasten your seat belt.

As there is so much information on this, in accesible publications, due to its importance, we allow ourselves to summarise the most important preview that the publication of this Regulation offered: any health claim that accompany a food product must have passed through a thin sieve: the endorsement by a group of experts of the European Food Safety Authority  (EFSA). In 2012, this sieve only let pass (that is, only approved, with a set of conditions) the 0,5% of around 44.000 solicited registrations by the manufacturers since 2006 (which is when this Regulation came out). Juan Revenga talked about this in his blog, in a text with the title “Industria alimentaria: ¿nos engaña o está desinformada?” (3)

4.2 The infectious lameness of the Regulation (CE) n.º 1924/2006.

Unfortunately, every law has a loophole: if the EFSA allows it to declare, for example, that some dosis of vitamine B6 can be accompanied by a health claim such as “it contributes to the immune system,” it is enough to add the particular quantity of vitamine to allow the manufacturer to put in capital letters, on the product, the aforementioned claim. We talked about this vitamine, present in a product called Actimel, in the former “instalment.”

But let us go to the crux of our concern: apart from the support by the facts that must contain the claims on healthy properties, and apart from the  facility with which some advertirsers have succeded in placing a non-supported claim on profiles by introducing in their product an additional element the effect of which is acknowledged by the EFSA, the Regulation includes a set of conditions for the use of nutrient claims and healthy attributes (article 4). And this is something to which, in our opinion, enough attention has not been given. According to this set of conditions:

1. By 19 January 2009, the Commission shall, in accordance with the procedure referred to in Article 24 (2), establish specific nutrient profiles and the conditions, including exemptions, which shall be respected for the use of nutrition and health claims on foods and/or categories of foods.

By 2009? Permit us to laugh at this, instead of crying. For it results that the nutrient profiles (in footnote 4 we expand to what the concept “nutrient profiles” makes reference) have not been established yet by the European Commision. In other words, the expression “by 19 January 2009” contained in the mother of all Communitary norms devoted to establishing the veracity of claims on healthy attributes present in foods is, to this day, awaiting the public activity with regard to, no more, no less, the conditions for the use of these claims.

That is why we said in its day that this necessary norm is in force, but incomplete. The article exists but, if the Commission has not done its homework, does that make one suppose that the legislator has foreseen that pastries may be sold as healthy?

That is the reason why we have noted that this Regulation is lame. But the thing is that it suffers from an infectious lameness, because claims are being made, that is obvious. And without the foreseen conditions by the legislator (without those of article 4, at least). Let us keep pulling the thread. Here we have what the EFSA said in 2008 (revised in 2009;

Foods promoted with claims might be perceived by consumers as having a nutritional, physiological or other health advantage over similar or other products without claims. The use of nutrient profiles aims to avoid a situation where nutrition or health claims could mislead consumers as to the overall nutritional quality of a food product when trying to make healthy choices in the context of a balanced diet.

Basically, the question would be, therefore, to avoid a product passing as healthy, when actually it is not, as it happens with our banana example and the Actimel with vitamine B6, described before. We return to the “proper” character of foods. It seems to us, then, that the prevision of the Regulation has as its object to avoid situations that in Spain are already proscribed by article 5 of the Unfair Competence Act.

Here there is more information. The scientific paper of the European Commission is available here. Obviously, and notwithstanding the extemporaneous result of this regulatory process, the pretension is clear.

Having come to this point, we want to share a reflection with you: it is not that some operators be great in finding the gaps through which to score a goal against us; the thing is that we have been seeing for quite a long time how the European Administration, EFSA included, look clearly and shamelessly the other way, hour after hour, day after day, year after year. Although it does not look the other way, unfortunately, with the elegance Laudrup did look at the stands when giving his passes, if we are allowed the football simile. But the prevision of the Regulation and its object (what it establishes) not only do they exist, but are as real and three-dimensional as a leather ball.

      4.3 The legislation from a closer view.

     Let us advance a little bit more, for those who may be more sceptical. The very same food sector, with the help of the Spanish Administrations, identifies this question with perfect clarity. In the document “Declaraciones de propiedades saludables en carne y derivados cárnicos” [Health claims on meat and meat products] (5) it is said the following with regard to the nutrient profiles (our emphasis):

Although there is a working document on the setting of nutrient profiles that the Commission has drafted (Working document on the setting of nutrient profiles - 13/02/2009) based on the opinion of the EFSA, while the aforementioned text be not approved it has no validity in legal terms. When that happen, its enforcement will mean that those foods that exceed certain values with regard to sodium, saturated fats and sugars (in the case of meat and its derivatives these are: 700 mg/100 g, 5 g/100 g, and without asignation, respectively) will not be allowed to contain any claim on healthy properties. On the other hand, if the product does not fulfil the nutrient profile, to make nutrient claims will only be allowed in two cases: a) if the claim refers to a reduction of fats, saturated fatty acids, trans fatty acids, sugars and salt or sodium, and b) if only an ingredient exceeds the profile, provided that stands close to the nutrient claim and with the same characters an indication of the nutrient that does not comply with the profile. The application of nutrient profiles, in the absence of a definitive concretion, may have a marked importance for the meat sector. To illustrate this repercussion we may consider the case, for example, of the dry-cured Spanish ham. It is a very appreciated food because of its sensorial characteristics, of high nutritive value because of its interesting composition with regard to the level of proteins, fat, vitamins and minerals, being its intake compatible with a healthy and balanced diet (Jiménez Colmenero et al., 2010). For its contents in beneficial compounds, the ham could include a wide number of nutrient claims (table 6), as well as some claims on healthy properties (tables 3 and 5), associated with the bioactivity of protein, iron, phosphore, etc. However, the hamʼs composition also presents some less convenient aspects like are those regarding the quality of the fat and the presence of sodium (Jiménez Colmenero et al., 2009 and 2010). The consequences of such a fact, bearing in mind the existence of nutrient profiles, is translated into the impossibility of making any nutrient and any health claims.

The situation is clear. At least it seems to us sufficiently overwhelming and at the same time depressing: today we can foist a healthy claim (that will make consumers believe that they are before a healthy food) on a product in which such statement should not be by any means, because its global nutrient profile is not healthy. Isnʼt it natural that if someone sells you, dear reader, a house “well positioned,” the last thing that it is expected is that some few meters away from the balcony there is a never-ending wall that annul the sights and impede the light from coming in? Well, the same thing with food products: when they tell us, for instance, that a food is “rich in healthy fats” (something that the public interprets as “good for the heart”), it is not tolerable that the food in question have huge quantities of salt (one of the main nutrients connected to the risk of suffering from cardiac problems) (6).

4.4 Respectful but vehement conclusion

What has been said in the present instalment goes only to ratify, with respectful vehemence, what we had concluded in the other instalments, and therefore, this is our conclusion of today: we must regard as illicit advertising that one which uses information that, even though it may be true, lead or may lead the addressees for its content or presentation into error, being susceptible of altering their economic behaviour, provided that it fall upon, for example, the proper character of the food in question so to facilitate a choice from the consumer. Period. 

It will be much more the case, then, when the advertising is not true, as, for example, when attributing or suggesting that a food is healthy when the scientific consensus in nutrition advises to avoid or reduce it. The question is not that the sector should not sell, but that the consumer has the right to receive a true, faithful, and honest information.

4.5 Postscript: the nasty question of the endorsements

We do not want to end without making a brief reference to the question of the “endorsements.” We beg you to read with attention the following sentence that appears in article 11 of the Regulation 1924/2006, regarding the question whether a medical association may or may not endorse products, recommend them, or approve their formulation or composition:

National medical associations and health-related charities. In the absence of specific Community rules concerning recommendations of or endorsements by national medical associations and health-related charities, relevant national rules may apply in compliance with the provisions of the Treaty.

That is, there is no specific community normative on this issue (a pity, truly) and therefore it is up to each nation to draft a norm about it. If it is already drafted, everyone will have to go by it. In any case, the norm must be in accordance “with the provisions of the Treaty.”

Therefore, national regulation (the Food and Nutrition Safety Act) could have prohibited food endorsements perfectly well in all cases, instead of saying, merely (artículo 44.4) that “the use of endorsements from associations, corporations, fundations or institutions, related with health and nutrition will be permitted on advertising or direct or indirect promotion of foods, when: a) They are nonprofit organisations. b) They undertake, in writting, to use the economic resources, obtained from that collaboration on activities that favour health, through investigation, development and specialised divulgation in the field of nutrition and health.

Is that all? Only formal conditions with regard to companies that endorse, without making any reference to the endorsements themselves? Shall we relay everything on the bona fide of these operators?

That is all: an explicit is not necessary on this point of the Law by virtue of which endorsed foods, to be so, should be considered healthy foods for their nutritional profile, their suitability and, above all, their lack of unhealthy characteristics, because the said prevision is already in another place of the Law. In this sense, article 4 of the European Regulation, the Food and Nutrition Safety Act, and the Unfair Competition Act do not allow that foods with an unhealthy profile may have an endorsement with which to confuse the consumer.

We return again, to the presumed illegalities that we noted before; for example, to the circumstances like the seal of the Spanish Pedriatrics Association on some cookies with a 21% of sugar (7), that is, with a nutritional profile clearly undesirable with regard to health. What makes us return to our first simile at the beginning of these instalments: A misspelling is still such no matter how many people keep incurring in it.

We are not the only ones to think that associations should not grant their logos to particular food brands: Jordi Salas-Salvadó, professor of nutrition and bromatology and member of the Scientific Committee of the Spanish Agency of Consuming, Food Safety and Nutrition (AECOSAN), thinks the same about it, as you can verify in this interview that carried out the dietist-nutritionist Pablo Barcina on November 6 of this year: (minute 1:35).

With this interview we leave you hoping to meet you again in the next instalment, but before leaving we will let the windows of the balcony wide open so that some light may come in, as we need it badly, and eat a banana too, why not.

So that you feel not the wait too long, we recommend you to read a brilliant text that appears in the blog “Gominolas de Petróleo”, with the title “No dejes que la publicidad alimente a tus hijos”.



1. General Advertising and consumers.
2. Unfair Practices.
3. “Specific” unfair practices on food advertising.
4. The Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods.
5. The Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers.
6. The responsibility of advertisers and their agents.

(2) The truth is moreover, that the Royal Decree 1907/1996, of 2 August, “reinforced in rank and renovated in time,” if we are allowed to say it, by the Act of 2011, let us remember, Act 17/2011, of 5 July, on Food Safety and Nutrition, establishes (no more no less) the prohibition of advertising food products in the following cases: 1. That they are destined to prevention, treatment or healing of contagious diseases, cancer and other tumor diseases, insomnia, diabetes and other diseases of the metabolism. 2. That they imply specific slimming properties or against obesity. 3. That they pretend a therapeutical advantage for one or more diseases, without adjusting themselves to the requirements and conditions prevised in the Medicine Act and other dispositions that expand it. 4. That they offer securities of alleviation or certain cure. 5. That they use as endorsement any type of authorisations, homologations or controls from medical authorities of any country. 6. That they make reference to their use in medical centers or to their distribution through pharmacies. 7. That they pretend to contribute testimonies from medical professionals, famous people or known by the public or real or supposed patients, as a means to lead into consumption. 8. That they pretend to substitute the common diet or nutrition, especially in the cases of maternity, lactation, infancy or third age. 9. That they attribute to some forms, presentations or food products brands of daily consumption, particular and specific preventive, therapeutic or curative properties. 10. That they attribute to food products, destined to dietetic or especial regimes, preventive, curative or other different ones from the recognised one given to such products according to their special normative. (…) 12. That they imply or note that their use or consumption favour the physical, psychic, sporting or sexual performance. 13. That they use the term «natural» as a characteristic vinculated to supposed preventive or therapeutic effects. 14. That they attribute superfluous character or try to substitute the benefits of the medicines or medical products legally recognised. 15. That they attribute superfluous character or try to substitute the enquire service or the intervention of medical professionals. 16. And, in general, that they attribute preventive or therapeutic effects that are not supported by sufficient technical or credited scientific proofs and expressly recognised by the Stateʼs medical Administration.

(3) Revenga J. Industria alimentaria: ¿nos engaña o está desinformada? El nutricionista de la general. 28 June, 2012. Online: [Retrieved: 24 de noviembre de 2015.]

(4) “The setting of nutrient profiles for foods bearing nutrition and health claims”, Scientific Opinion of the Panel on Dietetic Products, Nutrition and Allergies (Request Nº EFSA-Q-2007-058), availabe online at:

(5) Health claims in meat and meat products. Summary: This article has the purpose of showing the different opportunities the meat sector is provided with to establish health claims and the specific conditions of use within the legal established frame, derived basically from the Regulation (CE) nº 1924/2006. Date of publication: September 2014, number 229 of the Magazine Eurocarne. Available upon payment in the following link: and free in the following webpage of the Public Organism whose personnel drafted it, the CSIC:

(6) World Health Organization (WHO). Reducing sodium intake to reduce blood pressure and risk of cardiovascular diseases in adults, 2015. Online at: [Retrieved: 24 November, 2015.]

(7) Basulto, J. El cuento de Julio sin miedo (Julio Basultoʼs reply to the Nutrition Committee of the Spanish Pedriatrics Association). The blog of Julio Basulto. 24 August, 2015. Online at: [Retrieved: 24 November, 2015.]

martes, 8 de marzo de 2016

The regulation of Food Advertising: a Striptease in Instalments, III: Context. The applicable norms, points 2 and 3.

The regulation of Food Advertising:
a Striptease in Instalments, III
by Francisco Ojuelos and Julio Basulto. Translation by Ricardo Mena.
III: Context. The applicable norms, points 2 and 3. Original text in Spanish. The links lead usually to pages in Spanish.
In the two previous instalments (1st and 2nd) we have questioned the ethics and legality of some advertising practices concerning the promotion of foods, and we have come to the conclusion that as consumers (who are the food advertisingʼs main target) we have a “protecting shield” in the LGDCU, known as the General Consumer and User Protection Act. This meant (and still means, let no one scare) that it is our basic right the information we receive be correct. But this, which is fine, is not enough. There is more, much more.
As we said in the “Introduction” section, we have thought it necessary to divide the section devoted to the norms that regulate food advertising into six points:
1. General Advertising and consumers.
2. Unfair Practices.
3. “Specific” unfair practices on food advertising.
4. The Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods.
5. The Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers.
6. The responsibility of advertisers and their agents.

Once all this has been analysed, we will approach two more points: Advertising addressed to children, and Conclusions. As in the previous “chapter” we dived into the General Advertising and consumers section, today we will swim in the chilly waters of those two sections that follow: Unfair practices and “Specific” unfair practices on food advertising. Breath deep and do some stretching, for it will help you.
2) Unfair practices.
Did you do a preheating? Read then the following lines (our emphasis):
It is considered unfair by misleading any behaviour that contain false information or information that, although being accurate, by its content or presentation lead or may lead the recipients into error, being susceptible to alter the receipientʼs economic behaviour, provided that it fall upon some of the following aspects:
So far so good, isnʼt it? Before continuing, know that these lines belong to article 5 of the Unfair Competition Act (1), which is applicable to advertising in general. Let us keep giving strokes, that is, reading, to which “aspects” the act refers to (our emphasis):
b) The main characteristics of the goods or service, such as its disponibility, its benefits, its risks, its execution, its composition, its accesories, the process and date of manufacturing or supply, its delivery, its proper character, its use, its quantity, its specifications, its geographical and commercial origin or the results that can be expected from its use, or the results and essential characteristics from the testing or controls taken on the goods or service.
There is a word in the former philippic that should not be ignored by anyone, and is the following: “proper.” We have gone to the Real Academia, which considers “proper” as “accurate and consistent with the conditions or the needs of someone or something,” from the past participle of “to appropriate,” which is “to apply to each thing what is suitable and more convenient.” Therefore, it follows that the Unfair Competition Act states that when something is advertised, it cannot be understood that that “something” (a shampoo, a screwdriver, a cough drop or a fried tomato, to give four examples) is convenient to attain the suggested end, if it is not true. The basis for the success of every unfair strategy, apart from the main one, which is the Administrationsʼs unjustifiable and crass tolerance and the Courts of Justiceʼs lack of sensibility, is in the qualifying: it is enough to add a healthy nutrient (a vitamin) to an unhealthy product and remark the existence of that nutrient in the composition to consummate the alleged deceipt. It is enough to put the seal of a company from the health sector to an unhealthy food.
For example, no advertiser should be able to lead us into thinking that a chocolate bar helps child growth, suggesting that the bar gives them “energy,” for three reasons:
1) children can (and should) grow by eating healthy foods,
2) there are no energy deficiences in the Spanish population that compromise childrenʼs growth and
3) the consummer is being told to believe that the advertised bar possesses a healthy quality that in no way answers the reality of the said product, with an excess of sugar, salt and low-nutritional quality fats, even though it may have one or some characteristic that (in abstract and not considering the fact that the final product may have one or some undesirable characteristic), could be considered healthy.
As you would have guessed, it is not “proper” to endorse a healthy statement to an unhealthy food, although one of its components may cause some benefits. And the reason is that, if we follow the former example, a consumer concerned with her childrenʼs growth may, mistakenly, alter her buying decision and choose the chocolate bar instead of acquiring healthy foods to feed her children. If we are allowed the simile, a monkey wrench is good for hammering, but the proper thing is to do it with a hammer. In the food sector this kind of equivocations happen with too much frequency.
Let us see an example with vitamin B6 and a very well known product called Actimel. The European Food Safety Authority (EFSA) allows that every product that have some dose of such vitamin incoporate the statement “it contributes to the normal functioning of the immune system.” Actimel has such dose, therefore it shamelessly uses such statement. But be careful, and as it was expanded in the text “Is there any food that increase our defences?” (2), the EFSA does not allow a company to state that such vitamin “improves” the immune system (no vitamin, complement or food can be sold today with the endorsement that it “improves” the immune system). The ENIDE pool, furthermore, showed that there is no shortage of this vitamin in the population. Very well then, with the legislation in our hands we do not consider “proper” that they try to sell us a product with vitamin B6 added, endorsing it the said statement, instead of, for example, selling us a banana. It dealt with this issue the biologist and dietician-nutricionist Juan Revenga in his blog “El nutricionista de la general”, in a text with the title “The Food Industry: does it lie to us or is it deformed?” (3) You can also review the reflections that appear in the text ʻHealth risks of “functional foods.”ʼ (4)
As we are sure that you are not yet tired of swimming (or so we hope), let us see, then, the specific food and nutritional regulation (5). That is, we dive into the next point.
3) “Specific” unfair practices on food advertising
As you will be seeing all along these lines, we love to give strokes from one side of the Unfair Competition Act to the other. However, we need to move to other waters and dive into the Act 17/2011 on Food Safety and Nutrition to see the “specific” regulation. To start with, in points 1 and 2 of article 44 of this Act we find some somewhat cumbersome texts, that may sound to you like Greek, but we assure you that they are crucial. For the fact is that this Act states which Acts should rule the “commercial communication on food,” something as important as knowing, if in doubt, who must command an army:
1. Without prejudice to the specific dispositions collected in this Act, commercial communication on food will be ruled by Act 3/1991, of 10 January, on Unfair Competition; by Act 34/1988, of 11 November, General on Advertising; by the Royal Legislative Decree 1/2007, of 16 November, through which is approved the refunded text on the General Consumer and User Protection Act and other complementary Acts; by Act 7/2010, of 31 March, General Audiovisual Communication, and by the special norms that rule the activity in this sphere and be applicable to it.
2. Likewise, advertising messages on foods, released by any means or commercial medium, should adjust to the applicable regulation, and specifically to the Royal Decree 1907/1996, of 2 August, on Advertising and Comercial Promotion of Products, Activities or Services with an Alleged Healthy Goal (6).
Believe it or not, once this surf is overcome, which it was necessary to face, the waters stay calm. In addition to the former, the Act stipulates three concrete prohibitions as clear as a cloudless day.
3. Without prejudice to what is stated in the Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods, in the direct or indirect advertising or promotion of foods will be prohibited:

a) The inclusion of testimonies by sanitary professionals or scientists, real or fictitious, or by real or supposed patients, as a means to lead into consumption, as well as the suggestion by a healthy or scientific endorsement. [We well deal with the endorsements issue in good time.]
b) The promotion of food consumption with the end of replacing the alimentary or nutrition common regime, specially in cases of maternity, lactation, infancy or third age.
c) The reference to its use in health centers or to its distribution through pharmacies.
We extract, in summary, the two basic conclusions we can arrive at after all the above, with regard to the “specific” unfair practices on the issue of food advertising:
First conclusion, with regard to the content: advertising, even when accurate, cannot lead us into error on the proper character of a food, that is, on the convenient character for its use when what is being done is suggesting a concrete property. And this is so because food advertising is ruled, besides the Royal Decree 1907/1996, of 2 August, on Advertising and Commercial Promotion of Products, Activities or Services with an Alleged Healthy Goal, by the general norms (that we have enunciated in points 1 and 2 of section II, with the title “Context. The applicable norms”), a circumstance that allows us to conclude that article 5 of the Unfair Competition Act is applicable to it.
Second conclusion, with regard to the applicable norms: someone may try to sidestep the said Unfair Competition Act through a feint, as a basketball player would say. And very probably that person will do it with the excuse that the Spanish Food Safety Act does not state specifically that food advertising will be considered misleading if it can lead the recipient into error. In that case, and following the basketball metaphor, the referee should “call a foul,” because the Food Safety Act declares that the Unfair Competition Act is applicable to the food sector (7). And all the above means, as we have noted, that when we are advertised a food, by no means can they declare or insinuate to us that such food is proper for attaining a particular end (like improving our health), because of the fact that it has an endorsement that is conceded only by “extra-nutritional” reasons or because it has in its composition an ingredient that, in abstract, could be beneficient for our health, if the food as a whole is not advisable.
In short, besides having the right that we have of receiving correct and accurate information, the obligation goes further. The information we receive through advertising and presentation of food has to be so crystalline that, although being accurate, it cannot even lead us (they talk of mere probability) into error for its content or presentation about its benefits, characteristics, its proper character or the results that can be expected from its use. Under the light of all the above, our final conclusion of today is also crystalline like purified water: an enormous quantity of food advertising is, possibly and allegedly, ilegal. And it is ilegal no matter how many times it is repeated or considered normal, as a misspelling it is such no matter how many times it is repeated, as we said at the beginning of our series.
But we have more nutrients with which to feed you, for we have not served you our main dish yet, a main dish that combine exceptionally well with what has been served so far. So that you get your digestion ready, we remind you that in the next instalment we will offer you The Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods. When opened, like a melon just ripe, it will show us a pleasant surprise.
(1) Act 3/1991, of 10 January, on Unfair Competition is applicable to advertising practices, according to what is stated both by the Act 34/1988, of 11 November, General on Advertising, in its article 3.d, and by the very same Act 3/1991, on Unfair Competition, that regulates in its article 3 the “illicit advertising.”
(2) Basulto J. ¿Existen alimentos para aumentar las defensas? Consumer. 24 September, 2014, at:
(3) Revenga J. Industria alimentaria: ¿nos engaña o está desinformada? El nutricionista de la general. 28 June, 2012, at:
(4) Basulto J. Riesgos para la salud de los “alimentos funcionales.” Psicología y Nutrición. 2 October, 2014, at:
(5) In El Derecho Agroalimentario (2003, Brosa, Abogados y Economistas, J.M. Bosch Editor, ISBN 84-7698-693-9), pages 137 to 148, is studied the applicability of the General Advertising Act that, is said, “…cedes before the existence of more specific regulations with regard to functional foods and loses efficacy before the intervention powers of the public Administration on health matters and protection of consummers, although it displays all its applicability in cases between particular actors.” In cases of functional foods, the key regulation that is analysed later is the RD 1907/1996, of 2 August.
(6) The applicability in this sphere of the the Royal Decree 1907/1996, of 2 August, on Advertising and Comercial Promotion of Products, Activities or Services with an Alleged Healthy Goal presents a series of juridical questions of some depth, to our knowledge, that nevertheless exceed the scope of this work. The Royal Decree has its specific scope: the relevance that it may have on food advertising derives from the prevision of article 44.2 of the Act 17/2011, of 5 July, on Food Safety and Nutrition. Therefore: What does it mean that advertising messages on food must adjust specifically to the Royal Decree 1907/1996, of 2 August? It seems that (art. 1 RD 1907/1996) every food advertising that is released or is presented as useful for the diagnosis, prevention or treatment of diseases or physiological developments, slimming, modification of physical or psychological state, restauration, correction or modification of organic functions or other alleged healthy ends, must adjust to accuracy criteria with regard to health. The regulation, therefore, in some measure, may have a bearing on the same scope as the European norm: the Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods, concerning nutritional statements and healthy properties in foods.
 (7) For the fact is that, without taking away any efficacy from what the well-known Regulation 1924/2006 stipulates, which we will analyse in the next instalment, the Spanish Food Safety and Nutrition Act has its own specific object, together with all the other applicable norms it itself states as applicable, like the Unfair Competition Act. It seems, so far, that there are no specific previsions on unfair competition that establish exceptions to what it is stipulated in general in the Unfair Competition Act, that is: in the Act 17/2011, on Food Safety and Nutrition, there is no particular unfair competition regulation, but just the opposite, as we have just noted.