The last couple of years have posed significant regulatory challenges for the sports drinks market in Europe. As part of the Farm to Fork Strategy that was published in May 2020, the European Commission is planning to introduce a mandatory front-of-pack nutrition labelling (FOPNL) and set nutrient profiles to improve food information to consumers and tackle the consumption of foods high in fat, salt and sugar (HFSS) and the rising levels of obesity in Europe.
In March 2021, the Commission has also revived its work on the setting of maximum permitted levels (MPLs) for vitamins and minerals added to foods. In 2020, the UK Government also announced its plan to restrict the promotion of HFSS foods with a number of measures – some still under review.
Here are the current developments on these fronts, how these policy measures affect the market for sports beverages, and what the industry can do to ensure legislation is fit for purpose.
Front-of-pack nutrition labelling (FOPNL) and nutrient profiles
The industry has launched a targeted campaign asking for clear exemptions from these regulations for specialist nutrition products, such as sports drinks, stressing that these products shouldn’t be identified as HFSS foods that contribute to increased obesity levels.
As the European Specialist Sports Nutrition Alliance (ESSNA), the trade body representing the interests of the sports and active nutrition sector across Europe, has stressed, setting mandatory FOPNL and nutrient profiles on sports nutrition products, would not improve consumers’ information about these products. Rather, it would prevent them from making healthy, informed choices.
Sports drinks are usually made with high levels of certain nutrients, such as electrolytes like sodium as well as sugars and amino acids, to help people who exercise meet their specific nutritional needs. Within the current regulatory framework, sports drink companies are able to inform active consumers about the benefits of their products but changing the legislation and setting FOPNL and nutrient profiles on sports beverages essentially means that consumers will no longer have access to this information.
Due to their composition, some sports drinks may be penalised by FOPNL and nutrient profile schemes that do not take into account their specific use and labelled as unhealthy.
The Commission adoption of the legislative proposal on FOPNL and nutrient profiles is expected in Q4 2022, although rumours say it may be delayed to February 2023.
Ahead of the Commission adoption, ESSNA launched a survey to gather the sports and active nutrition industry’s expert views on the impact of FOPNL for the sector. The results of the survey confirmed that a FOPNL based on the dietary needs of the general population would distort the communication of the functionality of sports nutrition products and their role in catering for the dietary needs of people engaged in exercise. T
he participants of the survey noted also the additional economic burden of a mandatory FOPNL, stressing the costs of product reformulation and showing that some businesses may face costs of up to €4.000.000 for redesigning product labelling.
Maximum permitted levels (MPLs) for vitamins and minerals in food supplements
While there is currently no agreement among EU Member States on MPLs, some have already established their own MPLs and others are in the process of doing so.
The current divergence on MPLs among Member States leaves sports drinks companies with two choices: either reformulate their products according to the country they intend to market them in or follow the lowest MPL set in a Member State so that they can market their products across the EU. Both choices present challenges for the industry, with the first being costly and the second potentially resulting in a situation where the lowest level set by a single Member State may not be sufficient for sportspeople and may end up becoming the de facto MPL.
The Commission is now working on setting harmonised maximum intakes for vitamins and minerals and its Task Force on this issue has agreed on a common model for the setting of EU-wide MPLs. As a next step, in November the Task Force will discuss the model with the Commission Working Group (WG) on Food Supplements and Fortified Foods to refine the calculation methods. The Commission is also planning to launch a detailed public consultation in Q2 2023.
A harmonisation in the setting of MPLs would address the fragmentation of the Single Market as well as the strong push by some Member States to classify specific food supplements as medicines, which is not based on widely accepted scientific evidence. The challenge for the industry is to ensure that the EU regulation on MPLs is fit for purpose and takes into account the nutritional needs of active consumers.
Promotion restrictions on foods high in fat, salt and sugar (HFSS) in the UK
After months of uncertainty for the industry, on 1st October 2022, the UK Government implemented a ban on the placement of HFSS foods in key locations in supermarkets, as part of its plan to combat childhood obesity. Also, in October 2023, the Government plans to enforce restrictions on volume promotions, such as buy-one-get-one-free and from January 2024, a ban on HFSS adverts on TV before 9pm and paid-for adverts online is expected to be introduced.
The Nutrient Profiling Model (NPL), which the government used to determine which products are HFSS under the promotional restrictions regulation, looks at food composition while disregarding the specific purpose that specialist products serve. As a result, sports drinks may be caught by the restrictions. The sports and active nutrition industry has been actively engaged with policy makers to raise awareness of the fact that that sports nutrition products are by no means identifiable as HFSS and are not targeted at children and therefore need to be exempted from the legislation.
Liz Truss recently pledged to halt the ban on the promotion of HFSS foods but following the delays in implementing the legislation, Truss’s promise only caused more uncertainty and ambiguity for the industry.
As policy makers across Europe plan to tackle the consumption of HFSS foods and the Commission is working on setting MPLs at EU level, a number of regulatory challenges and also opportunities are on the horizon for the sports drinks industry. Being informed on the latest developments and being able to influence the policymaking, while educating regulators on the specificities of sports nutrition products and beverages are crucial for the industry to avoid unnecessary red tape.
Dr Adam Carey is the Chairman of the European Specialist Sports Nutrition Alliance (ESSNA), the trade association representing the interests of the sport and active nutrition sector across Europe.
ESSNA works to secure appropriate and proportionate European legislation on sports and active nutrition products and is in close dialogue with a wide variety of stakeholders, such as policymakers and senior officials in the relevant bodies, to do this. More information on ESSNA is available here.