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that is in force at the end of the transition period will remain in force after this point unless it is subsequently repealed.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.
Government guidelines recommend consumers to eat five portions of fruit or vegetables a day ('5 A DAY'). Information on what constitutes a portion can be found on the NHS Choices website here. Ads which refer to government health messages and do not make explicit nutrition or health claims are not covered by rules 15.1 or 15.1.1 but the general rules on misleadingness do apply.
Marketers claiming that a product counts as one of a person’s 5 A DAY will need to be able to show that product meets the criteria for being a portion of fresh fruit of vegetables. The ASA upheld complaints against an website which claimed “Gives Kids Their 5 A Day” because a fruit-flavoured drink supplied as a powder that needed to be diluted with milk could not be considered to contain a portion of fruit or vegetables, as defined under the guidelines (Kidz 5 A Day Ltd, 1 February 2012).
Ads may include claims such as “one of your five a day” provided they meet the government’s criteria but can only go further than that if there is a relevant authorised claim. Ads which include a health or nutrition claim will need to abide by the relevant conditions of use set out in the Annex (for nutrition claims) or the EU Register (for health claims).
Marketers who wish to make general health claims in relation to the fact a product is part of a person’s 5 A DAY will need to ensure it is accompanied by a specific health claim as required by rule 15.2 (see Food: General health claims).
Marketers wanting to use claims that exceed a one-in-five-a-day platform, for example for processed or composite foods or drinks can count towards two or more portions should, once again, refer to government guidelines and take special care not to exaggerate the contribution the product can make to a healthy balanced diet. The ASA has upheld complaints about ads for soups and fruit drinks because advertisers over-claimed the number of portions those products contribute towards 5 A DAY (Unilever Bestfoods UK Ltd, 9 July 2003 and HJ Heinz Co, 23 April 2003). In contrast claims in an ad for Innocent smoothies that “[e]ach glass contains two whole portions. Two of your 5-a-day" were considered acceptable because the advertiser was able to provide evidence that their product met the criteria. Because the smoothies contained all the edible parts of the pulped fruit, a sufficient amount of edible fruit and of fruit juice and did not include a dairy product, the ASA was satisfied that a 250 ml portion could provide two portions of a person’s 5 A DAY (Innocent Ltd, 16 September 2009).
Marketers should avoid implying government recommendations similar to the 5 A DAY initiative. Nestle was reprimanded for a television ad that claimed its breakfast cereals could help you “on your way to 3-a-day” for wholegrain consumption. Because no official government recommendation similar to that for fruit or vegetables exists for the consumption of wholegrain, the claim was deemed to mislead (Cereal Partners UK, 11 June 2008).