'Growing milk' no longer considered a health claim after appeal

A producer of organic infant formula has been fined by the NVWA for misleading label information. The producer has appealed this. The terms 'follow-up milk' and 'from the 12th month' were seen as a confusing combination. In addition, the question of whether 'growth milk' is a health claim was raised.

In the European Union (EU), terms related to infant and toddler foods are strictly regulated. For example, Regulation 609/2013 defines infants as children under 12 months and follow-on formula as food intended for infants. In addition, Regulation 2016/127 imposes requirements on the naming of infant and follow-on infant foods produced exclusively from cow or goat milk protein. Namely, these products are required to bear the name "Milk-based infant formula" or "Infant milk" and "Follow-up milk.

Health claims legislation: Regulation 1924/2006

In addition, health claims are strictly regulated in the EU by Regulation 1924/2006. A health claim is defined as a claim that states, suggests or implies that there is a relationship between the food (category) or a component thereof and health. Health claims may only be used if they are included in a Community list of approved health claims. For more information on this, you can attend our classroom training course''Claims, labels and advertising on food products''.

Confusing combination: Follow-up milk and from the 12th month onward

In the ruling, the Dutch Food and Consumer Product Safety Authority (NVWA) fined the producer for using different combinations of terms. For example, the NVWA found the combination "follow-up milk" and "from the 12th month" confusing based on the definitions and naming rules in the above regulations. The combination strictly means that the product is only intended for infants in the 12th month of life. On top of that, NVWA found the combination 'from the 12th month' with the term 'growth milk' confusing. Namely, it would suggest that the product is intended for children older than 12 months. This makes this combination of words misleading to consumers.

Health Claim

In addition to this confusing combination, the term "growth milk" came under further scrutiny. Indeed, according to the NVWA, 'growth milk' can be considered a health claim because it is related to children's development and health. Since this claim is not included in the Community List, the NVWA imposed a fine for this.

Appeal: Producer not guilty of misleading information

According to the producer, there was no misleading information. Indeed, "From the 12th month" can only mean that it is intended for children "after reaching the full age of 11 months. Furthermore, according to the producer, the packaging clearly stated that the target group was infants. It was also raised that competitors were allowed to include such periods as "from 10 months" and "10-12 months" on the label of infant formula.

On top of that, the term "growth milk" is not defined in the law. Therefore, according to the producer, it does not necessarily mean that this term is exclusively intended for toddlers. It further stressed that the use of follow-on milk after 12 months does not pose a public health risk. The producer also found that there was no health claim. Indeed, it does not state, suggest or imply that there is a link between the product and health. Finally, it was raised that the term "growth milk" is currently in wide use on products for infants and toddlers.

Verdict

The appeal was dismissed. The Board supported the judge's opinion that the combination "follow-on milk" and "from the 12th month" may give the average consumer the impression that the product is intended for feeding toddlers while all parties agree that the composition is aimed at feeding infants.

The same was true of the claim "growing milk. In the first instance, the judge found that no explicit link between the product and health was described. Nevertheless, the average consumer might get the impression from the term 'growth milk' that the product has a positive influence on the growth and thus physical development of the child. On this basis, 'growth milk' is considered a health claim. This claim is prohibited by absence from the European Community list.

All's well that ends well

The last word had not yet been said about the term "growing milk. In November 2023, the appeal against the contested (penalty) decision regarding the term 'growth milk' was upheld. The Board disagreed with the court that the term 'growth milk' is considered a health claim because it recognizes that the term has long been a commonly used term. This is also reflected in preamble 31 of Regulation 609/2013. Indeed, in this preamble, 'growth milk' is cited as an example of a term known in Europe to designate milk-based beverages for toddlers. As a result, the term 'growth milk' is no longer considered a health claim in the Netherlands, and thus the producer's fine was withdrawn. Good news for the infant formula industry!