In a Strasbourg plenary yesterday (7 July) Members of the European Parliament (MEPs) voted to back a motion, which called on the European Commission to withdraw its draft regulation approving the four claims and to consider restrictions on the marketing of energy drinks to children and adolescents.
With European Parliament backing secured, the Commission will now be forced to withdraw the proposal altogether or come up with a new option.
Mark Tallon, PhD, managing director of UK-based consultancy Legal Foods, said MEPs had steered the debate towards politics and away from science.
"It is a disgrace these decisions are politically motivated and not based on science and a risk analysis," he told us. “It seems MEPs are fine to have a coffee or two (two expressos could exceed 200 mg or the amount needed to make the claims) but when it comes to use by the non-coffee industry then it’s a different view.”
The motion’s champion, Danish Socialist MEP Christel Schaldemose, expressed major concerns about the claims being used to create a ‘health halo’ on sugary energy drinks.
Yet Dr Tallon said MEPs had taken a disproportionate approach to tackling energy drink consumption among young people.
Protecting young people
“If the issue is truly protecting ‘children and young people’ then why not place an age limit on the sale of goods using caffeine above a certain dose? Or a required warning on pack? These would be proportionate responses.
“Banning claims will not impact the sale of energy drinks, the younger consumers have bought into the brand or the whole concept of an ‘energy drink’.”
Yet Schaldemose has said repeatedly she was not seeking a ban on the sale of energy drinks to under 18s as seen in recent years in Lithuania and Latvia.
In the past industry group Energy Drinks Europe (EDE), which represents Red Bull among others, have highlighted its membership Code of Practice stipulation that marketing should not target children under the age of 12.
Yet Schaldemose says the numbers from a 2013 European Food Safety Authority (EFSA) report speak for themselves about the efficacy of this voluntary commitment.
The EFSA report found 68% of adolescents aged 10-18 years and 18% of children aged 3-10 years were “consumers of” energy drinks.
Regulatory void
EDE secretary general Andreas Kadi said the “regrettable” vote went against clear advice from EFSA, the EU’s expert body, which in a separate report concluded that 400 mg of caffeine a day and 200 mg in a single session of two hours does not pose a health risk for general population adults
He lamented the loss of the Commission’s proposals and said this meant caffeine claims would be left “unlegislated at a European level”.
“Its adoption would have ended long years of legal uncertainty, by providing a clear regulatory framework for industry and bringing reassurance and clarity for consumers.”
This was the fear of the Commission’s vice president for Jobs, Growth, Investment and Competitiveness, Jyrki Tapani Katainen, who told the parliament that the proposal would “properly frame the use of these claims”.
“I would invite you to consider the possible consequences of not deciding now. Until a new decision is taken, these caffeine claims would be continued to be used by any food business operator on the EU market without any specific conditions or restrictions for their use,” he said in a late-night plenary debate on Wednesday (6 July).
Adding vitamins for energy
Yet Tallon said ultimately the MEP veto would not shut down energy claims.
“No caffeine claim, no problem...Sprinkle some B vitamins into a drink and you can use an ‘energy claim’ even if the product still contains caffeine,” he told us.
For Oliver Huizinga, campaigner at the German arm of consumer group Foodwatch, this represented a concern not a business opportunity.
“With a few inexpensive added vitamins, energy drinks can already use the claim ‘contributes to the reduction of tiredness and fatigue’. We must put an end to these practices. Companies should not be allowed to use health claims for advertising unhealthy foods.”
He said the vote was a step in the right direction, but not enough to protect consumers.
Huizinga called for the establishment of nutrient profiles based on the model established by the World Health Organisation.
“Only products that meet the WHO criteria should be allowed to bear nutrition and health claims.”
This had been an original part of Schaldemose's motion, but a line on nutrient profiles did not make it past her Environment and Public Health Committee (ENVI) committee in June.
High dose hype?
Schaldemose has insisted that the “vast amount” of caffeine needed to be able to make the claims, means they would likely only be used by the energy drink sector.
However, from industry’s side, there have been concerns that sports gels and caffeine pills as well as supplements with lower doses but for repeat consumption would also lose out if the claims are blocked.
The alertness and concentration claims came with the stipulated intakes of 75 mg caffeine per serving and a warning not to exceed 300 mg per day.
This came within the limits of EFSA's risk assessment.