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 (General)
“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 GB (NHC) 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 evidence showing that the claim is on the GB (NHC) Register
The position in relation to “on-hold” claims
Hold evidence showing that the product meets the conditions of use of the claim
Any change must be to aid understanding
The meaning of the authorised claim cannot be changed or exaggerated
Be aware of the effect of any visual claims
Take care with the word “normal”
Make clear the quantity that must be consumed
The Regulation 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 Safety Authority (EFSA) (prior to Brexit), 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.
Except in the limited circumstances which relate to “on-hold” claims, claims cannot be made unless they are listed as authorised on the GB (NHC) Register. If a claim is listed as authorised on the GB (NHC) 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 GB (NHC) Register they will need to submit the evidence to the Department of Health and Social Care (DHSC).
If a product does not contain any nutrients or ingredients about which an authorised health claim can be made, ads for that product should not contain any 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 understands that following Brexit, the position on on-hold claims is likely be the same and that the DHSC has published a list of ‘on-hold’ claims. However, we also understand that “On hold” claims are still under consideration by the UK government and devolved administrations. We understood 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.
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).
The ASA had also 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).
When the ASA considered whether the documentation submitted for investigation which related to the “on-hold” claim was sufficiently robust, it assessed any changes to the wording of the submitted claim in the usual way. This meant that advertisers who sought to change the wording of an “on hold claim” needed to ensure they did not exaggerate claims or change its meaning (Pharma Nord (UK) Ltd, 10 December 2014, New Nordic Ltd, 14 October 2015).
In 2022 (following Brexit) the ASA considered ads for a caffeine drink which included claims that caffeine “enhances cognition, mental endurance and mood” (amongst others) which the ASA considered to be specific health claim and typically should be authorised on the GB (NHC) Register. The ASA noted the on-hold claim for caffeine was “Contributes to mental performance/helps maintain and improve alertness/aids concentration/helps make you feel more energetic/helps revive you/helps keep you alert” which was accompanied by a positive EFSA opinion for doses of at least 75mg. However, it was considered that the claim in the ad was an over-flex of the on-hold claim. Additionally, whilst there was a positive EFSA opinion for the on-hold claim (which was not used in the ad), the ASA would have expected that claim to have been supported by documentary evidence. In this case, the marketer did not provide documentary evidence to support the claim. As such, for multiple reasons the claims were found to breach the Code (ARJS Holding Ltd, 11 May 2022).
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).
When another advertiser sought to rely on the authorised claim "Substituting two daily meals of an energy restricted diet with meal replacements contributes to weight loss" it 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.
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).
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 GB (NHR) Register. Prior to Brexit, 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”.
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).
In some circumstances the conditions of use of an authorised health claim will require that specific information is given with the claim.
For example, 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).