Sports Nutrition: new legal situation of dietary foods for intense muscle wasting, especially for athletes
Sports Nutrition as food supplements changes its regulatory scope
In sports nutrition, as of July 20, 2016 and as a result of a new report issued by the European Commission of June 15, food for athletes will have a new legal situation.
Until that date, these products were regulated through Directive 2009/39/EC of the European Parliament and of the Council of 6 May 2009 on foodstuffs intended for a special diet. This first legal classification was due to its special compositional characteristics or to the particular manufacturing process that makes them clearly distinguishable from commonly consumed food products. However, this Directive did not establish specific provisions for these products as there were for other categories of dietary foods.
Subsequently, Regulation 609/2013 of June 12 was published, concerning foods intended for infants and young children, foods for special medical uses and substitutes for the complete diet for weight control. Although these regulations left out food for athletes, the European Commission was obliged to rule on whether it was necessary to specifically legislate this category of products.
Specifically, Article 13 of these Regulations established that, “before July 20, 2015, the Commission, after consulting the Authority, shall submit to the European Parliament and the Council a report on the need, where appropriate, for provisions for food intended for athletes. The report may, if necessary, be accompanied by the appropriate legislative proposal”. With Regulation 609/2013, in addition, the repeal of Directive 2009/39 / EC was determined with effect from July 20, 2016.
Well, just before the repeal of the Directive, on June 15, 2016, the European Commission has issued a report that analyzes the possibility of classifying sports food as foodstuffs for a special diet. The Commission has concluded that “there is no need for specific provision for food for athletes”. Since “there is an adequate legislative framework to ensure that food for athletes currently classified as foodstuffs for a special diet can remain in the market and continue to function“.
This implies that, as of July 20, 2016, foods that were known as dietary foods intended for athletes or for intense muscle wasting disappear. Now they become regulated in one of the following ways depending on their composition and mode of use or dosage:
- Common food
- Enriched foods
- Food supplements.
Those that contain a food matrix consisting of macronutrients, do not come pre-dosed and are not recommended in small unit quantities can be framed as food for current use or consumption. They are regulated by Regulation 1169/2011 on food information provided to consumers and Regulation (EC) 1924/2006 on nutritional claims and health properties.
Enriched foods, meanwhile, in addition to the regulation of ordinary foods should be governed by the provisions of Regulation (EC) 1925/2006 on the addition of mineral vitamins and other substances to food.
Products that consist of concentrated sources of nutrients, come in pre-dosed form (pearls, capsules, tablets, vials, etc.) may be classified as food supplements and their consumption in small unit doses is recommended. In this case, they will comply with the provisions of Royal Decree 1487/2009 regarding food supplements. Additionally, and as in the previous cases, labeling, presentation and advertising as well as nutritional and healthy declarations will comply with the provisions of Regulation 1169/2011 and Regulation (EC) 1924/2006 respectively.
As for the products that had been marketed until July 20, 2016 as food intended for intense muscle wasting, especially for athletes, they can continue to be sold as such until stocks last, and once they are sold out, adapt them to one of the three alternatives explained above. It will be necessary to check each of the products and classify it into one of those categories.
This decision of the European Commission has not been liked by all parties, since it causes a lack of legal clarity regarding these products, generating once again a great legal uncertainty, as certain important aspects such as the issue of control over doping substances or specific indications for the practice of certain sports.