A new webinar of the series “Probiotic talks from Europe” took place on April 4 2022, to discuss different scenarios that could create a favourable legal environment for the use of the term probiotic in the EU on labelling and communication.
Legal expert Katia Merten-Lentz presented the current situation and potential scenarios, while IPA Europe President Esben Laulund gave an introduction. The Q&A was moderated by Karen Vokes, Chair of the IPA Europe Regulatory Committee.

Good attendance and strong interest  showed during the IPA Europe Webinar “Can a mutual solution be found for probiotics in Europe? Legal analysis, dilemmas, solutions”, an online conversation focused on the uncertainty caused by the current regulatory situation in Europe for probiotic foods and food supplements, and on how policy makers can design coherent policies to address the triple challenge of better consumer information, a competitive and innovative European industry and legal certainty for this category of ingredients.

To introduce the context, IPA Europe President Esben Laulund indicated  that the probiotic market in Europe currently amounts to over 10 Billion Euro, 1/3 of the global market for probiotic foods and food supplements. He also reminded about the growing scientific attention for probiotics and their positive impact on health, also by the EU Science Hub Joint Research Centre and by grants of the European Commission for research.

He also highlighted that the consumption of probiotics in food, beverages and dietary supplements continues to grow, as both consumers and the industry look for ‘microbiome-friendly’ foods: this is confirmed by a recent survey commissioned by IPA Europe in 8 countries, reaching over 8000 consumers. Among the outcomes of the survey are two important numbers: 56% (average) of consumers indicate that they know what probiotics are, and 63% of the interviewed consumers answer yes when they are asked if they ‘consume probiotics’. This gives a good perspective of the way probiotic foods and food supplements are perceived by consumers in Europe.

The use of the term probiotic is currently a market practice in several  European countries and, in this context, the European Commission’s interpretation of 2007 that considers the use of the term “probiotic” on the labelling as a ‘health claim’ appears obsolete, and does not reflect the reality of the scientific innovation and of the societal changes.

The legal expert Katia Merten-Lentz indicated 3 concrete ‘legal avenues’ that could create a common, favourable legal environment for the use of the term probiotic on label and communication in Europe. The European Commission could repeal the guidance of 2007, but answering to a parliamentary interrogation in 2018, the Commission’s reply was that  ‘there was no intention to take action on this specific matter’.

The practicable option to give a legal certainty to the industry is the option to classify probiotics as “other substances” within the Regulation 1924/2006,  which implies the change to include ‘contain probiotics’ in the annex of the Regulation  (as it is currently the case for ‘contain vitamins’, for example). She also reminded that, more generally, the term ‘probiotic’ should be covered by Regulation 1169/2011 on consumer information, which indicates as mandatory  to inform the consumer with the descriptive name of the food.

IPA Europe has already made a reference to this in the recent www.ipaeurope.org/wp-content/uploads/2022/03/2022-3-Joint-statement-on-p...">https://www.ipaeurope.org/wp-content/uploads/2022/03/2022-3-Joint-statem..." target="_blank">joint position published in March 2022, together with the European Dairy Association (EDA). Regarding this joint position, the two associations are clear about the fact that we should look for one solution which includes both food and food supplements.

IPA Europe is  currently also engaged with a group of member states authorities to ask the European Commission to look for a solution. Nevertheless, based on the past experience, the simple repeal of the EC guidance (the first option suggested by Merten-Lentz) is unlikely.

Whatever the solution will be, Merten-Lentz was clear about the fact that the current situation does not allow the use of the term ‘probiotic‘ and, despite the fact that more and more countries in Europe are tolerant about the use of the term,  ‘de facto’ there is no guarantee for the industry, as long as the guidance of 2007 is valid, about the  fact that  the industry can legally use the term.

Katia Merten-Lentz’s presentation showed that it is necessary to endorse a legal interpretation towards a harmonised use of the term probiotic in food and food supplements in Europe. To do this, a clear political request by Member States at the level of the Council or of the European Parliament will be key.

During the Q&A conducted by Karen Vokes, Chair of the Regulatory Committee of IPA Europe, the  experts answered live  to the questions raised by the participants about several aspects related to probiotic definition and other terms, including the interest for prebiotic products, the need for  harmonisation of the use of the term across Europe and across food categories, and about the ongoing advocacy efforts to support a good understanding of the term probiotic.

Esben Laulund concluded that “in making clarity on ‘what probiotic is’ and in using the correct denomination as ‘other substances’, the probiotics industry can better meet the request of consumers of clear labels and can contribute to the objectives of the European Farm to Fork strategy and to the better functioning of the European Internal Market”.