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that is in force at the end of the transition period will remain in force after this point unless it is subsequently repealed.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.
Section 15 of the CAP Code sets out the rules which specifically relate to marketing communications concerning Food, food supplements and associated health or nutrition claims. It reflects the existing principles of the CAP Code as well as the requirements of Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (the ‘Regulation’). The Department of Health has produced guidance in relation to the application of the Regulation as a whole. Please see http://www.dh.gov.uk/health/2011/11/health-claim/ for further information.
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 CAP Code only.
Health claims are those that refer to a relationship between a food or ingredient and health, for example “Calcium is needed for the maintenance of normal bones”. To the extent that the EU Register is in force the ASA will assess health claims under rule 15.1. Rule 15.1 states that marcoms that contain health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified by the European Commission. Claims must be presented clearly and without exaggeration. Although flexibility of wording of the claim is possible, provided its aim is to help consumer understanding, adapted wording must have the same meaning for the consumer as the authorised claim in the EU Register. Marketers are advised to ensure that when seeking to make authorised claims more consumer friendly they do not inadvertently exaggerate the claim or change its meaning. Marketers should ensure that when making a health claim, it is made in relation to the relevant nutrient or food for which it has been authorised rather than for the food product as a whole.
Once the Register is in force, the only health claims which will be acceptable will be those on the Register. However it is our understanding that some claims are still being assessed and the Register will continue to be updated. Where transitional periods apply (or where the assessment of claims is ‘on hold’) the ASA will continue to investigate as appropriate and will require advertisers to provide substantiation to support claims made. Please note that given the complexities of the issues advertisers will be expected to provide documentation explaining the rationale for using such a claim.
Rule 15.2 of the Code reflects the requirement under the Regulation that health claims referring to general non-specific health benefits of the nutrient/food for overall good health e.g. “good for you” or “healthy” must be accompanied by a specific authorised health claim (please see Food: General Health Claims).
As a result of the Regulation, marketers may, for the first time, make disease risk reduction claims but the only acceptable claims of this type are those on the Register. Aside from authorised disease risk reduction claims, claims that state or imply a food prevents, treats or cures human disease are not acceptable in marketing communications for food products (Rule 15.6.2).
The Regulation provides for the possibility that, in future, claims for foods may be assessed according to the food’s nutritional composition but a nutrient profiling system to support such requirements has not yet been established.
A nutrition claim is one that refers to a nutritional benefit of a food, for example “low salt, high fibre”. Rule 15.1.1 states that only Nutrition Claims listed in the Annex of EC Regulation 1924/2006 on Nutrition and Health Claims Made on Foods or claims that would have the same meaning may be used in marketing communications. Therefore any claim that states or implies that a food has particular beneficial nutritional properties because of its ingredients must comply with the criteria for use set down in the Annex.
Nutrition claims may differ in wording to those set out in the Annex, provided that they still have the same meaning for the consumer, but will still need to meet the relevant criteria.