Are some 'no added sugar' claims really illegal?

Earlier this year, consumer group Test Achats filed a complaint to the Belgian food authority​​ over a company, Sweet-Switch, whose products claim to contain 'no added sugars' but are sweetened with stevia. 

Test Achats based its complaint on the EU law which states that a 'no added sugar' claim "may only be made where the product does not contain any added mono- or disaccharides or any other food used for its sweetening properties".​

Sweet-Switch's on-pack claim was "pure and simply illegal​", it said.

But claims such as ‘no added sugar’, ‘sugar free’ or ‘low sugar’ are commonly used by some of the biggest global manufacturers and retailers - so is this the case?

Conflicting regulations

Not according to food law expert and managing director of Hylobates Consultancy Luca Bucchini.

While it is true that the 2006 Nutrition and Health Claims Regulation (NHCR) uses the term "any other food used for its sweetening properties​" which led to Test Achats’ interpretation, the 2008 Regulation on Food Additives states: "A food with no added sugars shall mean a food without the following:​ any added monosaccharides or disaccharides [or]​ any added food containing monosaccharides or disaccharides which is used for its sweetening properties".​

The EU’s Fruit Jams Directive also allows the use of sweeteners in reduced sugar jam.

As the food additive regulation is more recent than the NHCR national regulators in the past have tended to use it for enforcement.

The Danish Ministry for Environment and Food (Foedevarestyrelsen) recognises the logic underpinning Test Achat’s interpretation ​by citing the wording of the NHCR but adds: “it is the Foodstuffs Agency's assessment that this has not been the purpose of the provision​” although it adds that caution should be exercised if manufacturers use sugar alcohols (polyols) as these can provide some energy.

Sweden’s National Food Agency Livsmedelsverket advises food makers​​ that added sugars refers to “all mono- and disaccharides added during food production, [including] sugars found naturally in honey, juice, fruit juices and fruit concentrates”.​

In fact, there have already been several rulings on the subject, Bucchini said. In the ‘Hero Diet Senza Zucchero Aggiunto’​ case, Italy’s misleading advertising authority ruled that sweeteners can be used in foods with no added sugars, a decision later confirmed by higher courts.

According to Bucchini, such overlapping pieces of legislature occur “rather often​”. Those that concern EU law are ultimately settled by the Court of Justice, which would look at the relevant legislation in detail and its intent.

Intents and purposes

He said the NHCR clause should also be read in conjunction with the claim ‘No added sugar’.

“It makes perfect sense to exclude from the definition honey, fruit sugars, concentrated fruit juices or other "hidden sugars", while high intensity sweeteners - whatever judgment one has on them - have nothing in common with sugars. ​

"Nothing in the NHCR suggests that the intention of the law is to limit the use of high intensity sweeteners to replace sugars.”​

Bucchini said it is a case of whether the food additive regulation can be used to interpret the terminology of the NHCR.

“I argue that this is the case as they have the same scope. It would be absurd to permit some food additives only in foods which are legally ‘with no added sugars’ but then forbid the "with no added sugars" claim on the same products.​

“Moreover, nowhere in the NHCR do the co-legislators – the Council and Parliament – hint that they wish to restrict the use of sweeteners and, if this was their intent, they would not have approved legislation in 2008 which permitted sweeteners in foods ‘with no added sugars’.”​

A 'strange and counter-productive' complaint

Whether Sweet Switch has the law on its side or not, its CEO and founder Sven Algoet said the complaint has put his company at a disadvantage. The firm had planned on launching one new Sweet-Switch product in April and two in May but has since had to “put everything on hold”​.

“I don’t want to launch a product and then have to do all the branding again afterwards and make a new investment,” ​Algoet said.

FoodNavigator contacted Test Achats and Belgian's FAVV but did not receive a response.

'No added sugar' claims are based on the common consumer understanding that no mono- or di-saccharides are being added, he told FoodNavigator, and the issue has been the source of negative publicity for his company while failing to provide any meaningful help consumers on healthy eating.

“Does this bring us hassle and bad publicity? Yes. Does it help public health and safety, or does it help consumers to better understand what is allowed and what is not allowed? Definitely not!”​

“The Belgian ​food safety authority FAVV and similar authorities in other EU countries have, beyond a doubt, other bigger issues to deal with than a claim like ‘no added sugar’," ​he added. "And this is the one thing that everyone agrees on throughout the entire EU, backed up by clear evidence data: we need to reduce sugar. So I find [Test Achats' complaint] really strange and heavily counter-productive.”​

The CEO said he has also received conflicting advice from the Belgian authorities since the complaint, with one person advising him to remove the claim.

“But the existence of our company is the ‘no added sugar’ and ‘sugar free’ claim," ​he said. "It’s the whole brand."​

Algoet also noted that while the other manufacturers targeted by Test Achats' campaign - Damhert Nutrition, Canderel, Dukan and Boerinneke - had promised to change their on pack claims and so were not subject to a complaint, he has not seen any evidence of this “on shelf”.​