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.
Please note that some examples in this advice document refer to cases which were investigated by the ASA prior to Brexit and the transition period. Although these cases refer to the EU Register rather than the GB (NHC) Register, the precedents established by those cases still apply.
Background and Brexit
This advice is primarily aimed at marketers planning to advertise in Great Britain. If ad campaigns are due to appear in Northern Ireland (in isolation or in combination with a campaign in Great Britain), CAP recommends that marketers obtain legal advice due to the complexities of the Northern Ireland Protocol (NIP) and its impact on the Regulation.
Following the UK’s exit from the EU (Brexit), Regulation (EC) 1924/2006, was brought into UK law by the European (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020.
Prior to Brexit, according to Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), only health and claims listed as authorised on the EU Register of nutrition and health claims (the EU Register) could be made in ads promoting foods. Nutrition claims were only permitted if they appeared on the Nutrition Claims Annexe.
From 1 January 2021, only health and nutrition claims authorised on the Great Britain nutrition and health claims register (the GB NHC Register) are permitted. The rules set out in the Regulations are reflected in Section 15 of the CAP Code.
The situation in relation to making health claims for foods in marketing communications is complex and continues to develop. Because the Copy Advice team does not give legal advice, we cannot comment on transitional periods and/or the status of the legal framework which underpins Section 15. This article sets out general guidance about how the ASA is likely to be applying the advertising Codes only.
Please see this Department of Health and Social Care (DHSC) Guidance for detailed advice on compliance with Regulation (EC) 1924/2006
Comparative Nutrition claims
Claims that state or imply that a food has particular beneficial nutritional properties because of its ingredients must comply with the criteria for use set down in the GB (NHC) Register (Rule 15.1.1).
Comparative nutrition claims are permitted but the circumstances under which they can be made are heavily restricted, not least because there are only four comparative nutritional claims listed in the Register. These are "increased [name of the nutrient]", "reduced [name of the nutrient]", "energy reduced" and "light".
Rule 15.3 of the CAP Code sets out the requirements for making a comparative nutrition claim, both in terms of what can be compared and the content required in ads including such claims. Please see “Food: Nutrition claims” for guidance on its application.
Comparative Health claims
As with all health claims, comparative health claims may only be made if they are listed as authorised in the relevant Register and meet the conditions of use associated with the relevant claim, as specified in the Register (Rules 15.1 and 15.1.1). CAP understands that an example of a comparative health claim would be “Consumption of foods containing fructose leads to a lower blood glucose rise compared to foods containing sucrose or glucose” (please see the relevant registers for the conditions of use).
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).