On the face of it, the EFSA health claims evaluation process represents a huge reversal for the functional foods and drinks category, with 80% of claims being rejected. However, while the process may have rooted out some of the charlatans in the marketplace, Ben Cooper believes any ongoing regulatory system should aim to foster the positive contribution functional products can make to improving diet and health. 

The recent conclusion of the European Food Safety Authority's (EFSA) health claims evaluation process has left all stakeholders - manufacturers, campaigners, policymakers and EFSA itself - with some important questions to ponder.

The health and wellness boom has been good for food and drinks marketers: Consumer interest in better-for-you products has provided much opportunity for innovation, with plenty of 'healthier' variants commanding premium prices.

However, while companies may challenge some of EFSA's adjudications and its methodology, that 80% of the 2,758 claims made by European food and drinks companies were rejected must signify that more than a few have been exaggerating the healthful properties of their products.

Consumer campaigners would put this rather more vehemently, but now may be a time for reflection rather than recrimination.

The process has put down a marker for what is expected of companies wishing to impute positive health-giving properties to their products. Even if this marker is seen by some as too exacting, EFSA's evaluation represents the most comprehensive appraisal of functional foods and drinks health claims by an official body, providing a useful and informed view on the future direction and viability of the functional concept and category.

So where does this leave us?

To begin with, the EU must now decide how to act on EFSA's work. By the end of the year, it is hoped, the European Commission and member states, in the form of the EU's standing committee on the food chain and animal health, will decide whether to ban the claims EFSA has rejected. If claims are banned, companies will be able to appeal or submit more information to EFSA for further assessment. Beyond that, they would have legal recourse to the European Court of Justice.

Given the commercial implications and the precedents that would be set by banning a huge raft of products, there is likely to be a wide divergence of opinion within the EU about how it should proceed. There will be lively debate and, as ever, industry and other stakeholders will be seeking to bring influence to bear.

A key reason for debate stems directly from concerns voiced by industry and others over EFSA's evaluation process.

It has been suggested that EFSA gave insufficient guidance on the submission of claims. EFSA itself stated that many claims had failed because insufficient data had been supplied. This had been particularly prevalent among claims about probiotics or dietary fibre. Companies say many claims were rejected simply because they were submitted in a format inconsistent with EFSA's methodology.

EFSA also required a level of scientific substantiation effectively on a par with that required for pharmaceuticals, but manufacturers say functional foods and drinks should not be expected to meet the same scientific criteria as medicines.

To a degree, the first problem can be - and is being - overcome through a combination of EFSA clarifying what it requires and companies themselves getting to grips with the authority's expectations. This may well help companies appealing against adjudications or resubmitting claims.

The second is a more fundamental problem and industry's prime bone of contention.

Manufacturers claim the degree to which a cause-and-effect relationship is being claimed has not been taken into consideration and the aim of functional foods and drinks has been misconstrued. While pharmaceuticals are formulated to prevent, treat or cure illness, functional foods are designed to contribute to a nutritious diet that can maintain and hopefully improve general health.

However, the type of marketing is extremely relevant here.  The more hyperbolic the marketing, the stronger the causal association becomes in the eye of the consumer. If a product's marketing makes - or implies - a strong claim of a medicinal benefit, surely it is reasonable to expect a high degree of scientific rigour to back that up.

If a looser connection between consumption and better health is made, then it may be legitimate for companies to suggest that a lower level of scientific substantiation could be accepted.

This will be a key issue for companies to consider. The relationship between a company's food scientists and its marketing teams can be tricky. Marketers naturally want to make bold statements and to have creative freedom to project an attractive and saleable image for products. Scientists should want companies to be as literal as possible in expressing what the product can and can't be expected to do.

EFSA's evaluations suggest companies may have to rein in their marketers' creative instincts. Advertisements designed by food scientists may win fewer creative awards but they may keep a company out of trouble with the regulators.

It will be interesting to see whether any company is brave enough to make a feature of this and employ some tactical understatement in their advertising.

This speaks to a critical point. Even if the health-giving attributes of functional products have been over-egged, the products can still claim to be healthier than mainstream equivalents and to contribute to a healthier diet and, probably, better health.

Product innovation of this nature has to be seen as part of the move by industry towards healthier foods and by consumers towards healthier diets. With the appropriate degree of scrutiny, such innovation should surely be encouraged.

The research and development that goes into functional foods and drinks also influences food science overall and, therefore, plays a role in the general reformulation challenge facing the food and drinks market. Functional foods and drinks can therefore have a catalysing effect on food reformulation in general and on how consumers view diet and nutrition.

It would be a backward step if, as some food companies are warning, a highly proscriptive regulatory approach to functional foods and drinks stifles innovation and leads to reduced investment, or worse still, to companies relocating their centres of innovation outside Europe. SMEs, which are responsible for some of the most interesting research, may be particularly affected.

It seems that a balance needs to be struck. Most stakeholders agree that the exacting EFSA process has at least had the positive effect of flushing out some of the charlatans in the marketplace, and that must remain a continuing objective for any regulatory process.

However, looking ahead the regulatory approach should aim to protect and foster what is good about the functional foods and drinks category, acknowledging that while the health and wellness boom has been good for food and drinks marketers, manufacturers can also claim some credit for leading that trend. Functional products have played a role in this and can continue to do so.