ESSNA suggests stricter obligations for sports nutrition e-commerce in EU Digital Safety Act

07 May 2021 --- The European Specialist Sports Nutrition Alliance (ESSNA) is welcoming the European Commission (EC)’s latest legislative proposal to create a safer and more open digital space for e-commerce, but believes it can go even further to protect sports nutrition consumers’ rights online.

The proposed Digital Services Act (DSA) encompasses new rules to establish a clear accountability framework for online platforms, while “fostering innovation, growth and competitiveness” within the single market.

Mindful of sports nutrition e-commerce in particular, however, ESSNA advocates the DSA should include stricter obligations for platforms to inform their consumers when they have purchased a counterfeit or illegal product.

For example, Article 20 of the DSA includes provisions to temporarily suspend actors providing manifestly illegal content. However, ESSNA suggests permanent exclusion of repeat offenders, as temporary suspension “might not suffice.”

“Consumers should have the right to know if the product they have purchased is not compliant,” the trade association states.

“Especially when it comes to food supplements and sports nutrition, the safety of consumers and the urgency in removing illegal products from the markets containing banned or harmful substances is paramount.”

The DSA aims to ensure EU legislation keeps up with the “constantly evolving” online market.Keeping up with e-commerce
Broadly, the ESSNA embraces the DSA’s ambition to democratize and protect “the rapid and widespread development of digital services.” 

“Many new ways to communicate, shop or access information online have appeared, and they are constantly evolving,” states the EC. “We need to ensure that European legislation evolves with them.”

Fraud in the sports nutrition sector alone is no novelty. For example, a seven-year ESSNA investigation published last November revealed 476 sports nutrition products in violation of EU law. 

Overall, ESSNA maintains that most companies in the sports and active nutrition sector comply with legislation. 

“However, it is not infrequent to encounter cases of repeat offenders who persevere in selling harmful products online. This is despite multiple requests to stop such practices, which decrease consumer confidence and ultimately harm the whole sector.”

Not comprehensive without clarity
Although ESSNA supports the DSA’s ambitions, it calls for more legislative clarity. ESSNA asked to know how the DSA’s idea on introducing “trusted flaggers” – or online users who report illegal goods, services or content – will interact with existing industry’s initiatives and reporting models. 

ESSNA also invites further clarity on how the proposed DSA rules will interact with existing EU legislative frameworks, such as the Official Controls Regulation for food and feed law, to ensure compliance and consumer protection online. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32017R0625 

The obligation in Article 11 to designate a legal representative in the EU for providers outside of Member States is welcomed to ensure better tracing of “rogue non-EU players.” However, more details are needed on the specific role of those legal representatives.

ESSNA believes that more clarifications are needed to protect European consumers online and offline.ESSNA has experience in how lacking legislative definitions can put the sports nutrition sector at risk. Last month, the trade association argued that the UK government “poorly defines” what model will be used for food categorization to tackle childhood obesity, which could have unintended overlaps into sports nutrition.

Weighing in on the first pan-European good manufacturing practice debate in March, the ESSNA maintained the standard is “ill-defined,” questioning whether the standard would offer meaningful safeguards against contamination with banned substances.

Protecting the sports nutrition boom
Although the proportion of food products sold online is “low” compared to other goods sold on the internet, ESSNA anticipates “fast growth” in the coming years.

Innova Market Insights data reveals the use of “recovery” claims in sports nutrition launches has increased globally, featuring a 30 percent year-over-year growth when comparing 2019 and 2018 launches. The market researcher also highlights how sports nutrition is weaving into the weight management, skin, cognitive, digestive and immune support sectors.

Tech advances, for instance, are a tool in providing sports nutrition safety. The Informed Sport barcode-scanning app helps users find sports nutrition products tested for banned substances. 

By Anni Schleicher