- Sri Lankan consumers receiving lower standards of health protection
Legal provisions on food labelling claims in Sri Lanka are not adequate when compared to legal standards, which results in Sri Lankan consumers receiving lower standards of health protection, a local research found.
This finding was made in a research article on "Claims on Sri Lankan food labels: A comparative legal analysis with selected jurisdictions" which was authored by C.A. Hettiarachchi and J. Wardle (both attached to the Health Ministry), M. Arnold (attached to the Open University of Sri Lanka's [OUSL] Legal Studies Department) and N.L. Muhandiram (attached to Australia's Technology University's Public Health Department) and published in the OUSL Journal's 15th Volume's Second Issue in December, 2020.
According to the Cambridge Dictionary, the general meaning of the word ‘claim’ is a statement that something is true or is a fact, although the statement alone cannot prove it and people may or may not believe it. Per the Collins Dictionary, a ‘claim’ can also be something which someone says but one which the person making the ‘claim’ cannot prove and which may be false.
The Sri Lankan law on food label related claims is stipulated in the Food (Labelling and Advertising) Regulations of 2005 which is made under the Food Act of 1980. These food labelling-related regulations define a claim as any representation which states, suggests or implies that a food has a particular quality relating to its origin, nutritional properties, nature of processing, composition, or any other quality.
The importance and challenges of regulating claims on food labels
Claims are common in food labels. They are a major method by which to deliver a manufacturer’s message directly to the consumer. Claims are important items in a label in terms of food marketing, and often infer a particular quality of the food product. Therefore, it is not surprising that most items in any given food label are claims. Given their prominence, the regulation of claims made on food labels is necessary in order to protect the health-related concerns of consumers.
Due to the complexity of the laws, it is often not easy to understand as to whether any particular claim complies with the regulations. Such complexity often confuses manufacturers, authorities, authorised officers and even lawyers. First, a claim should be identified, and thereafter, an assessment can be made on its legality.
The International Food Standards are also called Codex Alimentarius and Codex Labelling Standards. Provisions on claims in food labels are outlined in Section 13 of the Sri Lankan Food (Labelling and Advertising) Regulations, 2005.
A claim is the most important ‘advertisement’ or direct to consumer message of food manufacturers in a food label. Therefore, it is perhaps natural that food manufacturers will attempt to use unjustified or unproven claims in a food label in order to promote their products. This can potentially mislead consumers and ultimately affect human health. As such, it is the responsibility of the State to regulate these claims. However, in order to ensure compliance, the labelling regulations should be clear and strong enough to enable such regulatory action.
Manufacturers influence consumers to buy their products through a number of mechanisms, one such modality being their food labels.
Information on food labels could help consumers make healthy choices. M. LaBarbera's "Reading food labels - How does it help buy healthier foods?" observes that they may facilitate the comparison of the nutritional values of different foods. However, K. Gunnars's "Top 11 biggest lies of the food industry" notes that manufacturers often use food labels to suggest that their products are healthier than they really are. Although a potential tool for improved health, food labels can also be used to mislead the consumer. T. Jolliffee's "The loopholes of food labelling" points out that if consumers do not have sound knowledge based on which to judge labelling-related claims, they may not be able to choose healthy food. Therefore, sound legislative control on labelling information is necessary so as to protect consumers’ health.
In Sri Lanka, food labelling does appear to influence consumer behaviour. P.H.K. Prathiraja and A. Ariyawardana's "Impact of nutritional labelling on consumer buying behaviour" which randomly selected 90 consumers from three supermarkets in Kandy, found that 65% bought products with nutrition labelling due to perceived benefits, suggesting the importance of implementing appropriate labelling regulations. I.A. Talagala and C. Arambepola's "Use of food labels by adolescents to make healthier choices on snacks: A cross sectional study from Sri Lanka" which was a study carried out among Grade 12 students in Government schools in the Colombo District, found that more than 70% of them paid attention to information on the label while the majority was of the view that the information given on labels of expensive and popular brands were trustworthy. These findings suggest that regulating labelling information such as claims will positively influence the purchasing behaviour of consumers.
The trust towards nutrition content-related claims was significantly higher for those who reported reading it. The presence of trustworthy claims can lead to improved nutritional decision-making and the critical assessment of label claims. Therefore, consumers may inappropriately attribute health benefits to the food product, if claims are not properly regulated by the law. This shows the influence of claims on the food label and the importance of its accuracy towards consumer attitudes.
The impact of legislation does appear to have an effect on claims. This proves the success of enacting stringent labelling laws on food labelling-related claims.
C.A. Hettiarachchi's "Compliance of labels of beverages to food labelling-related regulation and the effectiveness of an advocacy package in improving adherence to labelling-related regulations by the food industry" revealed that four/36.4% of the labels with the term ‘fortified’ food, three/50% of the labels with the term ‘enriched or fortified with vitamin C’, 70/63.65% of the labels with the term ‘pure’ and 16/80% of the labels with the term ‘natural’ are non-compliant to regulations while participants had claimed that certain labels were clearly incorrect and misled the consumers, with one of the common methods used to mislead the consumer being pictures that are displayed on the label. Participants also stated that children were also misled by the pictures. These findings suggest that the implementation of labelling-related regulations related to food claims is not satisfactory in Sri Lanka. Therefore, the State should take action to review these perceived lapses in the existing labelling laws, especially on claims which are used as marketing strategies. Even though claims contribute significantly to marketing endeavours by food manufacturers, limited regulations exist.
Identification of a ‘claim’
Section 13.3(1) of the Regulations defines a claim as any representation which states, suggests or implies that a food has a particular quality relating to its origin, nutritional properties, nature, processing, composition, or any other quality. The term ‘particular quality’ is not explicitly defined or explained under the Regulations. This is a broad definition and can catch most statements on the label as a ‘claim’, though this definition is restricted to Section 13 (and thus excludes Sections 11 and 12). Section 11 focuses on the recommendations made by a medical practitioner, an association or professional on the label, which are considered recommendations of third parties rather than claims. Section 12 stipulates that no label (or advertisement) relating to any food shall contain a statement or claim of ‘special characteristics’ of a food unless approved by the Chief Food Authority. However, notably, the term ‘special characteristics’ is neither defined nor explained in the Regulations. The Sri Lankan laws differ slightly from international norms. International Food Standards developed by the Codex Alimentarius Commission – a joint programme of the Food and Agricultural Organisation and the World Health Organisation - on labelling-related regulations, define a ‘claim’ as any representation which states, suggests or implies that a food has particular characteristics relating to its origin, nutritional properties, nature, production, processing, composition or any other quality (Codex Alimentarius' Codex general standard for the labelling of pre-packaged foods). Though the Sri Lankan law has attempted to adopt the same Codex definition in the Regulations and has largely done so, the word ‘production’ is missing in the Sri Lankan definition. The words ‘production’ and ‘processing’ might be understood as synonyms by the public, but they have two different meanings. There may be production without processing (for example, the original and natural food can be packed without undergoing any change to the food). ‘Property of food’ means a component, ingredient, constituent or other feature of food. Therefore, the Sri Lankan definition of a claim seems to be more restricted. Section 11 of the Sri Lankan Labelling-related Regulations is relevant to the recommendations of professionals. Section 12 states that no label or advertisement relating to any food shall contain a statement or claim that such food has special characteristics unless approval is granted by the Chief Food Authority. The meaning or interpretation of the term ‘claim’ is stated only in Section 13.3. Provisions on claims in the Regulations do not automatically extend to Sections 11 and 12 of the Regulations as the term ‘claim’ is restricted to Section 13. Therefore, that meaning or interpretation of a claim does not refer to the entirety of the Regulations (including Sections 11 and 12), but only to Section 13. The term ‘claim’ has also been stated in Section 12 of the Sri Lankan Labelling-related Regulations as an analogue to the term ‘statement’ but without an interpretation. Here, the term ‘claim’ should be interpreted in general. Therefore, it cannot have the same meaning of the claim as described in Section 13.3. The term ‘special characteristics’ is not defined or explained. The term ‘special characteristics’ is not included in the definition of the term ‘claim’ in Section 13.3 and the meaning of the term ‘claim’ in Section 13.3 does not refer to Section 12 either. It should be noted that these descriptions covered under Sections 11 and 12 are separate to ‘claims’ that are defined in Section 13.3. The approval of the Chief Food Authority is required only for descriptions covered by Sections 11 and 12. In other words, it could be interpreted as a ‘claim’ that does not require the approval of the Chief Food Authority as Sections 11 and 12 do not come under the purview of the claims stipulated in Section 13.
Types of claims
The Regulations do not expressly classify claims even though specific types of claims are stated and defined. For example, nutritional claims are specifically identified in Schedule V. A nutritional claim is further split in Schedule V to nutrient content claims, comparative claims and nutrient function claims. Schedule V defines a nutrient content claim as a nutrition-related claim that describes the level of nutrient content in a food (such as 'source of calcium', 'high in fibre', 'low in fat'). In addition, Section 13.7.vi stipulates the terms ‘fortified’ and ‘enriched’ which are also nutrition content-related claims. A comparative claim is defined as a claim that compares the nutrient levels or energy value of two or more foods (such as 'reduced', 'less than', 'fewer', 'increased', 'more than', in relation to other products). Nutrient function-related claims describe the physiological role of the nutrient in the growth, development and normal functions of the body (such as 'Calcium aids the development of strong bones and teeth', 'Protein helps build and repair body tissues', 'Iron is a factory for red blood cell formation', 'Vitamin E protects fat in body tissues from oxidation', 'Folic acids attribute to the normal growth of the foetus'). The Regulations do not stipulate the term ‘health claim’. However, Schedule V (d) (IV) provides certain limitations on health-related claims, stating that “the claim shall not imply or include any statement to the effect that the nutrient would afford a cure or a treatment for or protection from, any diseases”. Claims related to non-nutritional properties are not expressly termed or classified. However, claims related to non-nutritional properties such as ‘pure’, ‘natural’ and ‘substitute’ are specifically stated in Sections 13(4), 13(5) and 13(6), respectively. The Codex classifies ‘claims related to nutritional properties’ as nutrition and health-related claims, whereas, there is no such explicit classification in the Sri Lankan law. The Codex has excluded the ingredient list and nutritional information from nutrition-related claims, probably because they are regulated by specific legal provisions or standards. Therefore, restrictions relevant to claims do not apply to the ingredient list and nutritional information according to the Codex. Sri Lankan Labelling-related Regulations neither categorise claims related to nutritional properties nor define nutrition-related claims. The term ‘health claim’ is also not mentioned in the Regulations. The sub-categorisation of nutrition-related claims in Sri Lanka is not consistent with the Codex standards. The nutrition function related claim is a nutrition claim in the Regulations whereas it is a health claim in the Codex. The Regulations also failed to identify non-addition claims (for example, ‘no added sugar’, ‘no added salt’). In addition, the Regulation when compared with the Codex also failed to identify and regulate claims such as 'fresh', 'home-made', 'organically grown' and 'biologically grown'.
Regulation of claims
Certain claims in the Regulations are absolutely prohibited, some are relatively prohibited while other claims are considered mandatory to display on labels. Absolutely prohibited claims include any false claim, claims stating that “dietary fats are a protection against heart diseases or of benefit to persons suffering from heart disease”, claims of “tonic, restorative or medicinal properties”, claims of “being beneficial, a cure, alleviating or preventing any illnesses’ (either directly or indirectly), and claims on statements of weight loss (e.g., 'aid for slimming, weight control or weight reduction'). Relatively prohibited claims are nutrient content-related claims which are not in accordance with Table A of Schedule V. Further, the terms ‘pure’, ‘natural’ and ‘substitute’ or any words implying they are prohibited unless the specified conditions stated in the provisions of Section 13 are satisfied. Other claims such as the ‘country of origin’ for imported products, ‘ingredients’ and ‘colour codes’ are claims that should be mandatorily displayed on labels. Sri Lankan Regulations are apparently more stringent in the claims relevant to health concerns. Even though Sri Lankan Regulations do not generally identify health-related claims as a category, specific health-related claims such as 'dietary fats are a protection against heart diseases or of benefit to persons suffering from heart disease', ' contains tonic, restorative or medicinal properties', 'cures, alleviates or prevents any illness', and 'aids slimming, weight control or weight reduction' are absolutely prohibited. Certain health-related claims are allowed under conditions in the Codex Standards. However, as the Regulations prohibit specific health-related claims, it indirectly implies that other health-related claims are allowed in Sri Lanka without restrictions. This is a result of failing to identify health-related claims as a separate entity in the Sri Lankan Regulations. No claims are explicitly permitted without any restrictions by the Sri Lankan Labelling Regulations. Even though there are no explicitly permitted claims stipulated in the Regulations, claims related to non-nutritional properties (except for the words ’pure’, ‘natural’, and ‘substitute’ or words implying them) and health claims (except for specifically stipulated health claims) are allowed as there are no restrictions to stop them.
Apart from Food Labelling-related Regulations, there are other laws in Sri Lanka which regulate claims. Although not explicitly implied as claims, some consumer law-related provisions also exist to protect against misleading claims. The Consumer Affairs Authority Act of 2003 stipulates the term ‘representation’ instead of ‘claim’ and false representations are prohibited by Section 31. Specific types of false representations have been stipulated to make it clearer. However, clear descriptions are not present under the Food Labelling Regulations.
"Sri Lankan Labelling Regulations on claims are overly complex and potentially misleading. The term ‘special characteristics’ mentioned in Section 12 of the Sri Lankan Labelling Regulations needs to be more explicitly elaborated in order to gain a practical validity. The scope of Sections 11, 12 and 13 of the Labelling Regulations should clearly clarify the issue with simple instructions and examples. In addition, specifying permitted claims (without restrictions) also will improve the compliance by the food industry and improve the enforcement of the current laws by Authorised Officers. The Sri Lankan Food Labelling Regulations have largely failed to adopt the standard definitions and classification of the Codex Alimentarius on labelling claims, or develop another reasonable classification that comprehensively identifies and addresses all standard types of claims. Scientific classification should therefore be adopted when making future amendments," Hettiarachchi et al. concluded.