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.
“Health” claims are those which refer to a relationship between a food or ingredient and health. The rules on health claims apply to claims which suggest or imply a relationship between food and health, not just explicit claims. Marketers should be careful when preparing marketing communications for foods and food supplements because the scope of the definition of a health claim can in practice be quite broad; ads will be judged on the likely interpretation of the claim by consumers, not the advertiser’s intent in making it.
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications (Rule 15.1.1). Advertisers seeking to make authorised health claims must:
- Hold documentary evidence showing the product meets the conditions of use of the claim as specified on the EU Register (Rule 15.1)
- Hold evidence showing that the claim is on the EU Register
- The position in relation to “on-hold” claims
- Hold evidence showing that the product meets the conditions of use of the claim
- Refer to the relevant nutrient the claim has been authorised for
- Present the claim clearly and without exaggeration
- Provide any additional information as required by the conditions of use of the claim
- Make clear the quantity that must be consumed
Rule 15.1.1 means that some claims which the ASA and CAP may have considered acceptable prior to the EU Register coming into force, can no longer be used (Weetabix Ltd, 1 August 2012).
The Regulation also includes a complex and sometimes significant framework of transitional periods. During the transitional periods for these rules, the ASA considered a number of claims which had been given “positive” scientific opinions by the European Foods Standards Authority (EFSA), before becoming authorised health claims. Although investigated under different rules, these rulings are still relevant when considering whether a health claim may be used and are included in the examples below.
This article includes examples of ASA rulings on claims made in TV ads (which are regulated under the UK Code of Broadcast Advertising) but that the ASA is likely to apply the same principles to non-broadcast ads.
Hold documentary evidence showing the product meets the conditions of use of the claim as specified on the EU Register
Except in the limited circumstances which relate to “on-hold” claims, claims cannot be made unless they are listed as authorised on the EU register. If a claim is listed as authorised on the EU register, the ASA will not assess the underlying evidence for the authorised claim (as this has already been done by EFSA). If advertisers would like to make a claim which is not listed on the EU Register they will need to submit the evidence to EFSA.
If there are no authorised claims for a product; no health claims may be attributed to the product (Monocore Ltd, 8 January 2014).
An advertiser that sought to substantiate claims which were not on the EU Register with various documentation including an EFSA Opinion on a nutrient’s safety and bioavailability was found to breach the Code (Principle Healthcare International 25 June 2014).
When an advertiser has evidence to show that a health claim which has been submitted to EFSA is now “on hold”, the ASA may assess that evidence. Advertisers should be aware that there is a specific list of “on-hold” claims.
An ad which made health claims relating to Bach Rescue Night as a sleep aid was found to breach the Code because the advertiser did not provide the ASA with evidence that relevant claims for the botanical ingredients contained in the product were “on hold” and the ASA’s investigation revealed there were no “on hold” claims for the relevant ingredients (A Nelson & Co Ltd t/a rescueremedy.co.uk, 11 March 2015).
Advertisers should be wary of conflating “on-hold” claims with authorised claims (Pharma Medico Ltd, 11 March 2015).
The ASA has ruled against ads which made claims where the advertiser was able to show that the claim was “on-hold” but provided insufficiently robust evidence to substantiate the claim (Pharma Nord (UK) Ltd, 10 December 2014, New Nordic Ltd, 14 October 2015).
If the ASA considers that the documentation submitted for investigation which relates to the “on-hold” claim is sufficiently robust, it will still assess any changes to the wording of the submitted claim in the usual way. This means that advertisers seeking to change the wording of an “on hold claim” must ensure they do not exaggerate claims or change its meaning (Pharma Nord (UK) Ltd, 10 December 2014, New Nordic Ltd, 14 October 2015).
Advertisers must hold evidence that the product contains the amount required of a nutrient or ingredient to meet the conditions of use of the relevant authorised claim. The ASA investigated an ad which listed eight nutrients and made the claim "Includes 8 nutrients that can contribute to the reduction in tiredness and fatigue". Because the advertiser was able to show that the product contained sufficient quantities of the nutrients to be in line with the relevant conditions of use, the ASA accepted the claim (Nature's Best Health Products Ltd, 13 June 2012).
An advertiser that sought to rely on the authorised claim "Substituting two daily meals of an energy restricted diet with meal replacements contributes to weight loss" was found to breach the Code because their product did not comply with specifications for a meal replacement laid down in Directive 96/8/EC in relation to food products under Article 1(2)(b) of that Directive (Protein World Ltd, 8 April 2015).
A key principle underpinning the use of authorised health claims is that marketers must ensure that the claim is made in relation to the relevant nutrient or food for which it has been authorised, rather than for the product as a whole. To put it another way, replacing the nutrient referred to in the authorised claim with the product name is unacceptable.
The context of the authorised claim is important. For example, the ASA ruled against an ad where it considered the overall impression created was that it was the particular formulation and combination of vitamins of the product which delivered the health benefits, rather than each of the individual vitamins referenced in the ad. It was also not clear which vitamins provided which of the referenced health benefits. The ASA therefore concluded that the relationship between the food and the health benefits had not been made sufficiently clear (Forever Living Products (UK) Ltd, 2 September 2015).
By way of example, something like “[Product] is a source of Calcium, calcium is needed for the maintenance of normal teeth” is likely to be considered acceptable, provided the overall context of the ad does not imply that the product specifically delivers the benefit.
Unfortunately some advertisers have breached the Code because they have linked authorised claims (or positive EFSA opinions) to their particular product rather than the specific ingredient (Forever Living Products (UK) Ltd, 2 September 2015, Oxford Biolabs Ltd, 8 January 2014; Neurobrands LLC, 28 November 2012 and LA Muscle Ltd, 31 October 2012).
The ASA ruled that a poster for Lucozade Sport which did not make clear that the product was a carbohydrate-electrolyte solution breached the Code because (amongst other things) it did not link the health claim to the nutrient (GlaxoSmithKline UK Ltd, 8 January 2014).
Changes should only be made to aid consumer understanding, not to make the claim more appealing. Provided its aim is to help consumer understanding, marketers may be able to adapt the wording of an authorised claim as long as it has the same meaning for the consumer as the authorised claim on the EU Register. Marketers are advised to ensure that, when seeking to make authorised claims more “consumer friendly” for the purposes of improving consumer understanding, they do not inadvertently exaggerate the claim or change its meaning. Advertisers will have to show the ASA that the initial claim was difficult for the average consumer to understand.
Referring to “Omega 3” rather than “Docosahexaenoic acid” was considered an acceptable change because “Omega 3” was more widely known by consumers and therefore was likely to aid consumer understanding of the claim (Tesco Stores Ltd and Nutricia, 30 July 2014).
Although a degree of flexibility in the wording used may be acceptable, reworded claims must have the same meaning for consumers as that of the authorised health claim. When considering whether the authorised wording has been changed appropriately the ASA is likely to consult the guidance on the General Principles on Flexibility of Wording for Health Claims from the Department of Health. The ASA will consider any changes made in the context of the ad as a whole.
The existence of an authorised health claim for a nutrient does not give advertisers carte blanche. Making a health claim that is merely similar to an authorised health claim is likely to be problematic because of the potential that the claim made will have a different meaning to the authorised claim. For example, the ASA ruled that the claims "SlimGum", "aid weight loss", "weight management supplement" and "boosts energy" would be not be interpreted in the same way by consumers as “...contributes to normal energy-yielding metabolism” (LA Muscle Ltd, 31 October 2012).
If the wording of two authorised claims is different, the adapted or “flexed” versions of the claim should not be the same. When considering an ad which changed the authorised wording from “calcium is needed for…” to “provides calcium for…” and “iron contributes to” to “provides iron for...” the ASA ruled that the substitution of "calcium is needed for ..." with "provides calcium for ..." was unlikely to breach the Code. However, it considered that “provides iron for” did not equate to "Iron contributes to", as it exaggerated the authorised claim (Nutricia Ltd, 29 January 2014).
Whilst the context of the health claim within the ad as a whole is important, it’s worth noting that replacing the wording "contributes to" in the authorised claim with "to support" has been considered to retain the meaning of that aspect of the authorised claim and not exaggerate it (Tesco Stores Ltd and Nutricia, 30 July 2014). Furthermore, "Helps keep" has been substituted for "contributes to" without being considered to change the meaning of that aspect of the authorised claim (GlaxoSmithKline UK Ltd, 7 May 2014).
Marketers should be aware that whilst in some media it may be possible to make an aspect of the claim clear visually, this will not always be possible or appropriate. What can be achieved in a cinema or VOD ad, may not be possible in a poster or press ad. For example, a TV ad intended to show prolonged endurance exercise had a voice-over making reference to exercising “at the limits of your ability” and shots of clocks to show a long period of time had elapsed; it was considered to use acceptable alternatives to including an explicit reference to “prolonged endurance”. A poster ad for the same product which had an image of someone playing rugby in order to link the claim to prolonged endurance exercise was considered insufficient (GlaxoSmithKline UK Ltd, 8 January 2014).
In the context of an ad which was clearly promoting follow-on milk, a product for babies aged 6 to 12 months, the removal of the reference “to children” from the authorised health claim was considered acceptable (Nutricia Ltd, 29 January 2014).
Using before and after photographs in marketing communications for food or food supplements is likely to be problematic if the visual claims implied by the photos go beyond the meaning of an authorised claim on the EU register. The ASA ruled against claims on a website which included photos of people who had lost weight because the implied weight loss claims were not authorised on the EU Register (ketonepremium.com, 10 July 2013).
Advertisers should avoid giving more emphasis to one part of the authorised claim over another. An ad which included authorised health claim “Zinc contributes to normal fertility and reproduction” was found to breach the Code because the words “Fertility & Reproduction” in the authorised claim were in large, coloured bold text whereas the first part of the claim, “Zinc contributes to normal …” was in significantly smaller text. The ASA considered the former part of the claim was particularly important to consumer understanding that zinc “contribute[d]” to “normal” fertility and reproduction only and was concerned that because the ad emphasised the latter part of the claim, the way in which the authorised claim was presented contributed to an implication that the specific supplement being advertised had a health benefit over and above contributing to normal fertility and reproduction (Vitabiotics Ltd, 4 February 2015 ).
Taking an authorised health claim which refers to “normal function” and rewording it to refer to “improved” or “increased” function is likely to be seen as exaggerating the claim. The ASA considered that the claim “[vitamin D] increases bone, heart, and muscle health” went beyond contributing to the maintenance of normal bones, normal muscle function and normal function of the immune system (Neurobrands LLC, 28 November 2012).
The ASA has ruled against a number of ads which made adapted health claims which it considered changed the meaning of the authorised health claim by removing the word “normal” (GlaxoSmithKline UK Ltd, 7 May 2014).
The ASA ruled that an ad which made the claim "for strong bones" with regards to calcium did not have the same meaning as the authorised claim "for normal growth and development of bones" (Nutricia Ltd, 29 January 2014). Please note that this decision supersedes the aspect of a previous ruling which (in the course of ruling against a non-authorised disease risk reduction claim) referred to normal and strong potentially being interpreted the same way (Yoplait UK Ltd, 27 February 2013).
In some circumstances the conditions of use of an authorised health claim will require that specific information is given with the claim. An advertiser breached the Code when they failed to make clear that the effect was dependent on an energy restricted diet and on consuming 1 g of glucomannan with water three times a day before meals (Neurobrands LLC, 28 November 2012).
Ads will need to inform consumers how much of the product they need to consume in order to achieve the intake of the relevant nutrient. For example, the ASA ruled that ads for a chewing gum did not make clear that four pieces of the product were required to be consumed in order to achieve the intake of thiamine necessary to make the relevant claim (LA Muscle Ltd, 31 October 2012).