Lawyer: EU’s on-hold caffeine claims are usable

By Shane STARLING contact

- Last updated on GMT

Ambitious: But are True Start claims going too far for the NHCR?
Ambitious: But are True Start claims going too far for the NHCR?

Related tags: Caffeine

Five caffeine health claims approved by the European Food Safety Authority (EFSA) but not yet EU-approved as industry, consumer and government stakeholders debate concerns, are in use anyway.

An example is UK start-up True Start which was established this year by two British Ironman triathletes who used caffeine and developed what they call ‘caffeine-controlled performance coffee’, feeding off EFSA-backed caffeine-endurance claims.

True Start’s USP is its claim to be the only coffee in the world that can precisely guarantee caffeine content, which it establishes from research that shows 2-3 mg caffeine per kilogram of body weight is optimum for athletic performance. It uses a premium Columbian arabica bean.

One claims expert said such claims may draw regulator attention because they are straying from the wording of the five positive opinions from EFSA’s Panel on Dietetic Products, Nutrition and Allergies (NDA) under the EU nutrition and health claims regulation (NHCR​).

UK food lawyer Owen Warnock, partner at Eversheds, said the claims should withstand legal challenge.

“For a general health claim such as these there is no need for prior use under article 28.5 of the [amended] NHCR,”​ Warnock told us.

Article 28.5 states health claims must comply with this Regulation and with existing national provisions applicable to them, and without prejudice to the adoption of safeguard measures”.

Warnock said “small variations in wording, as opposed to variations in meaning, would not matter.”

True Start claims from its website

But he added: “In practice traders tend to want to say more, and if they do then they are making an unapproved claim and are in breach of NHCR.”

EFSA on caffeine safety

EFSA recently publishes a safety opinion for caffeine. The final published opinion​ stuck to its basic draft conclusions that:

  • Single doses of caffeine up to 200 mg (about 3 mg/kg body weight for a 70-kg adult) did not give rise to safety concerns, even when consumed two hours before intense physical exercise.
  • Habitual caffeine consumption up to 400 mg per day was not a safety concern for non-pregnant adults and habitual caffeine consumption up to 200 mg per day for pregnant women was not a concern for the foetus.
  • Other constituents of energy drinks at typical concentrations (about 300–320, 4,000 and 2,400 mg/L of caffeine, taurine and D-glucurono-γ-lactone, respectively), as well as alcohol at doses up to about 0.65 g/kg body weight, would not affect the safety of single doses of caffeine up to 200 mg.

“Quite a few caffeine claims, including ones quite similar to the on-hold claims, have had adverse assessments by EFSA and have been refused authorisation.I would expect regulators such as the Advertising Standards Authority (ASA) to look closely at any caffeine claims to see that they go no further than the wording of the on-hold claims.”

Such a claim submitted by SmithKline Beecham Limited and rejected by the NDA is here​.

The ASA has built a reputation for strictly enforcing the NHCR in recent years.

The five on-hold claims are:

  • caffeine helps to improve concentration
  • caffeine helps to increase alertness
  • caffeine contributes to a reduction in the rated perceived exertion/effort during endurance exercise
  • caffeine contributes to an increase in endurance performance
  • caffeine contributes to an increase in endurance performance capacity

While the coffee and energy drinks industries back the use of such claims, groups like the European Consumer Organisation (BEUC) have called for them to be blanket-banned.

We were not able to reach True Start by the time of publication.

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