The food, beverage and supplement weight management product market in the U. S. last year was $3.64 billion and growing fast. For the industry, beyond the traditional claims such as low fat (food minus), a burgeoning new field involves a shift to satiety claims (food plus).
Foods marketed for satiety have enhanced levels of fibre or protein and claim to enhance feelings of fullness after eating, helping the consumer to resist hunger pangs between meals. Seeing the market potential created by the rapid rise of obesity, and the increasing recognition that most diets don’t work over time, the Canadian food industry has already been pushing the envelope on satiety claims.
What is the Canadian law? For many years, food regulators in Canada insisted that satiety-type claims on food were not legal as they fell under the “drug” definition. While it took some serious pushing back, the Canadian Food Inspection Agency (CFIA) now appears to accept the argument that hunger is a desire, an appetite for food to satisfy a craving of the body, or an uneasy sensation, not an organic function and therefore not a drug claim. As a result, “reduces hunger,” “helps to reduce your appetite,” “satisfies hunger feelings” and “increases feelings of fullness” are now all widely used in the marketplace without enforcement action.
The CFIA continues to cling to the distinction that “satisfying hunger” is acceptable but “managing hunger” is not. I’m not making this up and will not try to explain the CFIA rationale (it’s a bit like the “clear” distinction that the CFIA considers laxative claims as verboten, but laxation claims or “promotes regularity” are perfectly legal).
Foods specifically represented for use in weight maintenance are still governed by a separate regulatory regime” beyond the scope of this article.
There is still a lot of room for regulatory turbulence, particularly given the new products that are close to coming onstream. Some ingredient manufacturers insist that they have products that can promote “body shaping.” Antioxidants such as green tea may have potential in weight management and recent studies have suggested that obesity may have a microbial component opening the door for claims about gut microflora. If one part of Health Canada (HC) does not think the scientific evidence is strong enough (Food and Nutrition) then companies will just go next door to another office at HC and sell the products as natural health products (NHPs) where the standard is not the same and sweeping claims are already being made. This is yet another area where foods are not competing on a level playing field with NHPs.
There is also going to be regulatory turbulence until there is clearer guidance on standards for efficacy. Some companies have suggested that a Satiety Index (SI) be developed, but the unhappy regulatory confusion on Glycemic Index (GI) does not bode well for that approach.
Seeing the marketing potential and what competitors are doing, satiety claims will continue to proliferate. The industry will get bolder in their claims, especially with off-label promotions. Competitors will complain to the CFIA. Uneven enforcement and regulatory uncertainty will abound. Sound familiar?
– Ronald L. Doering, a past president of the Canadian Food
Inspection Agency, practices food law in the Ottawa offices of Gowling Lafleur Henderson
LLP, and can be reached at [email protected]