The Whitehouse Consultancy

Cowboy businesses are no longer welcome in the sport nutrition sector as it becomes increasingly mainstream and regulatory compliant.

There was a time when sports nutrition was a word associated with big tubs of unappealing powders and hyper-muscled men consuming steroid-like hormones in gym changing rooms. It is fair to say that protein powders still constitute a considerable chunk of the sports nutrition market, but the exclusive association of these and other products with elite athletes and fitness enthusiasts, let alone hyper-muscled men, is fast becoming obsolete.

With an increasingly diverse consumer base – all ages, both genders, and with a wide variety of sports commitment – regularly buying these products, from the weekend jogger to the exercising young mother looking to improve health and wellbeing, it is sometimes easy to forget that sports nutrition foods have for many years been looked at with suspicion and considered ‘borderline’ by regulatory authorities across Europe. This reputation may have been deserved historically, with some companies keen on ‘free riding’ and on earning money through the commercialisation of illegal and banned substances on the EU market.

Such cowboys have always been the minority and their behaviour has never been acceptable to the responsible players in the industry, who finally decided to get together in 2003 by forming the European Specialist Sports Nutrition Alliance (ESSNA). Back then, the European Union was planning a new ‘Sports Nutrition Directive’ which would have tightly regulated sports nutrition products, by covering “foods intended to meet the expenditure of intense muscular effort, especially for sports people.” Without a common, respected voice to talk to the institutions, it would have been easy for policy-makers to take an unnecessarily restrictive approach without fully understanding the issues characterising the sector.

Since then and thanks to ESSNA’s hard work in the public policy environment, the idea of a special Directive for Sports Nutrition has been abandoned and instead the Commission has adopted a Regulation that brings such products under general food law. The Regulation on Food for Specific Groups (609/2013/EU) will become applicable in July 2016, bringing about a paradigm shift for the sports nutrition sector in Europe. But, before we get there we will have to wait for a report which the Commission will prepare by July 2015 “on the necessity, if any, of provisions concerning food intended for sportsmen.” This report could ultimately be accompanied by legislative proposals to regulate sports foods, although most experts agree sports people are clearly not part of a vulnerable group that needs regulatory protection. Indeed, sports foods sit comfortably within the provisions of food law which require food products to be safe and appropriately labelled, and for the claims made for them to be validated.

The industry recognises that there remains much work to do to change perceptions, so recently ESSNA decided to take a more proactive approach to policing the market, giving free advice to that minority of companies which are still not complying is the legislation and going after the cowboys who willingly flout the rules. Over the past year ESSNA has investigated dozens of cases involving illegal and non-compliant products, from those in in breach of the Nutrition and Health Claims Regulation (1924/2006/EC) to some (rare) cases of seriously dangerous and already illegal products which were being sold on the internet by criminal gangs.

We have worked with advertising authorities, medicines regulators, food regulators, the police and local enforcement authorities around Europe successfully to ensure that non-compliant products were withdrawn from the market. This initiative clearly shows that there is a way forward for trade bodies, responsible businesses and regulators to co-operate in tackling that minority of manufacturers, distributors and retailers of non-compliant sports nutrition products.

In view of the Commission’s on-going report into the possibility of bringing forward specific legislation regulating sports nutrition products, the next two years will be absolutely crucial for the sector. Responsible companies now have the opportunity to work with ESSNA to achieve the objective of a transparent, clean and well-functioning sports nutrition market once and for all. If you are active in the sector and want to be part of the solution, then do contact us at:

Chris Whitehouse is Chairman of leading public affairs consultancy whose Food Regulation Team advise many organisations and businesses in the specialist food product sector. He is also Director of Strategy of consumer organisation and of the European Specialist Sports Nutrition Alliance

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