Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
BREXIT - The CAP and BCAP Codes include many rules which seek to reflect significant pieces of EU law or UK law that has been made to implement EU law.
Marketers should be aware that all EU-derived legislation that is in force at the end of the transition period will remain in force after this point unless it is subsequently repealed. CAP and BCAP will continue to consider any changes that might be necessary to the Codes as they receive further information from government, and will make any appropriate changes as soon as they are in a position to do so. This News Article explains the position further.
Additionally, following the end of the transition period we understand that changes will be made to legislation relating to nutrition and health claims made on foods. The Advertising Codes will therefore be updated as soon as possible in 2021 and marketers are advised to familiarise themselves with the relevant guidance and register published by the Government, to which the ASA will have regard from 1 January 2021.
Marketers who are unsure about the effect of any changes should seek legal advice.
Health and Nutrition claims
Marketers promoting a food (or a soft drink) or food supplements, should take the Food Rules into account and note that a claim which directly results in an effect on one’s health is likely to fall under Section 15 of the Code. Article 2 of Regulation (EC) 1924/2006 on Nutrition and Health claims made for Foods, defines a health claim as “any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health..."
A health claim for a food should only be made if the claim is "authorised" and listed on the EU Register of nutrition and health claims (15.1). The requirements of the regulation are very strict in terms of the permissible wording of health claims. Health claims must be presented clearly and without exaggeration. The ASA is likely to investigate a complaint about a stated health claim which does not have the same meaning as an authorised claim which is listed on the EU Register. Furthermore, a product should be marketed in accordance with the conditions of use for that specific claim. There may be some exceptions to this, but in this instance, marketers should seek legal advice.
Similarly, nutrition claims are only permitted if they are listed in the Annex of Regulation (EC) No 1924/2006. Ads must conform with the conditions set out in that Annex
Appearance and beauty claims
If marketers are unsure about whether a claim which relates to food and one’s appearance would be considered a health claim for the purposes of section 15 of the Code, they should seek copy advice, because the interpretation of such a claim will depend on the specific claims made and the overall context of the ad.
Claims not caught by the Food rules still need to be supported by scientific evidence. Rule 12.1 states that substantiation will be assessed on the basis of the available scientific knowledge. Although it states that marketers should provide trials conducted on people only “if relevant”, CAP’s experience is that efficacy claims for anti-ageing products need to be supported by clinical trials conducted on people.
In one ruling concerning an ad for Imedeen skincare tablets, which stated “[worked] from within to help reduce the appearance of fine lines and wrinkles”, the ASA considered the ad in context and concluded that the claim was likely to be seen as a beauty claim rather than a health claim. However, as a beauty claim it would still need to be supported with suitable evidence proving the efficacy of the product but the advertiser’s evidence was not sufficient.
There were a number of issues with the evidence, reported by the expert used in this case. They included the fact that a number of studies did not involve study protocols that included a non-active control or placebo throughout the whole trial period, or up to the period where statistically significant changes had been reported. The studies did not use methods to assess direct measures of wrinkles before or after treatment. They also involved a high component of post-menopausal women (known to show different cutaneous symptoms to pre-menopausal women) and it was considered that readers would infer from the ad, which included a picture of a 43-year-old woman, that this was the target group for the advertised product. The ASA understood that the majority of women in this age group would be pre-menopausal and therefore not representative of the age group in the studies (Pfizer Ltd, 11 June 2014)
In July 2014 the ASA investigated a TV ad which opened with a shot of a woman gazing at a reflection of her face in a dressing-room mirror. Meanwhile, the voiceover stated "I drink Pure Gold Collagen every day". The ASA considered that even though the ad made no specific claims relating to the qualities of collagen, or the product itself, as having any effect on the appearance of a person’s skin, most consumers would understand from the ad that there was an association with collagen and a positive effect on a person’s appearance. The improvements seen over the trial period in the advertiser’s evidence, were not statistically significant or robust enough to support the implied claim, and therefore, the complaint was Upheld. Although this ruling refers to a TV ad and was therefore subject to the BCAP Code, we consider that the principle would apply equally to non-broadcast material (Minerva Research Labs Ltd, 16 July 2014).
Marketers should not claim that a food is “organic” or is “made with organic ingredients” unless it comes from farmers, processors or importers who: follow the minimum standards set down in Council Regulation (EC) 834/2007; are registered with an approved certification body; and are subject to regular inspections (Lean Muscle X, 21 August 2013).