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
Health claims (specific)
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 GB NHC Register is in force the ASA will assess health claims under rule 15.1. Rule 15.1 states that marketing communications that contain health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim.
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 on the GB NHC 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.
See: Food: Health claims
Prior to Brexit “On hold” claims could be used in marketing, provided such use had the same meaning as the proposed wording of the claim and they were also compliant with applicable existing national provisions as set out in Regulation 1924/2006 on nutrition and health claims made on foods, which meant that the claims needed to be substantiated by evidence as required by the CAP Code. CAP We understand that following Brexit, the position on on-hold claims remains the same. The DHSC has published a list of ‘on-hold’ claims which also sets out conditions under which the claims can be used.
CAP understands that “On hold” claims are still under consideration by the UK government and devolved administrations. We understand they are currently developing the next steps on the approach to “on hold” claims for use in the GB market. Marketers wishing to use on-hold claims are therefore advised to seek advice from the DHSC.
General Health Claims
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 (see Food: General Health Claims).
Disease risk reduction claims
As a result of the Regulation, marketers may make disease risk reduction claims but the only acceptable claims of this type are those already authorised on the GB NHC 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).
A nutrition claim is one that refers to a nutritional benefit of a food, for example “high fibre” or “low sugar”. Rule 15.1.1 states that only Nutrition Claims listed on the applicable register 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 Register.
Nutrition claims may differ in wording to those set out in the applicable register, provided that they still have the same meaning for the consumer, but will still need to meet the relevant criteria. The ASA ruled against the claim “Zero calorie pasta” because it considered that “zero calorie" had the same meaning as "energy free". The conditions of use for an “energy free" claim is that the product must not contain more than 4 kcal per 100 ml, whereas the product contained 7 kcal per 100ml, therefore the ad was found to breach rule 15.1.1 of the Code (NAH Foods Ltd, 31 July 2013).
Nutrition claims may differ in wording to those set out in the Register, provided that they still have the same meaning for the consumer, but will still need to meet the relevant criteria.