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that is in force at the end of the transition period will remain in force after this point unless it is subsequently repealed.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.
A claim that a food can have an effect on cholesterol could either be a health claim or a disease risk reduction claim depending on the extent of the claim and the context of the ad as a whole.
The EU Register of authorised health claims includes some claims for particular nutrients which refer to cholesterol, for example: “ALA contributes to the maintenance of normal blood cholesterol levels” The EU Register also includes some disease risk reduction claims that refer to reducing cholesterol, for example “Plant sterols and plant sterol esters have been shown to lower/reduce blood cholesterol. High cholesterol is a risk factor in the development of coronary heart disease”.
In 2012, the ASA upheld a complaint made against the claim “reduces cholesterol” because the advertiser did not show the claim was authorised by the European Commission, as required by rule 15.6.2 (Skoosh, 24 October 2012). Similarly, the claim "Tomatoes contain high levels of Lycopene which have been linked to a reduction in cholesterol levels" breached the Code because it was reduction of disease risk claim not listed as authorised on the EU Register (Direct Healthcare Ltd t/a Chemist Direct, 24 July 2013).
Advertisers seeking to make an authorised health claim should take care that in their efforts to make a claim more consumer friendly, they do not exaggerate the authorised claim or change its meaning.
In 2013, the ASA investigated the claim "no other food lowers cholesterol more" for a product which was allowed to make the authorised reduction of disease risk claim "Plant sterols have been shown to lower/reduce blood cholesterol. High cholesterol is a risk factor in the development of coronary heart disease". Because the authorised claim did not have a comparative element, and the claim “no other food lowers cholesterol more" was not itself listed as authorised on the EU Register, the ASA ruled it breached the Code (Unilever UK Ltd, 16 October 2013).