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that is in force at the end of the transition period will remain in force after this point unless it is subsequently repealed.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.
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 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. 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).
The rules on Nutrition claims are the same in the BCAP and CAP Codes therefore the principles from TV ads can provide useful examples of how the ASA will interpret Nutrition claims in VOD, cinema or online ads. The ASA ruled that the claim "only one gram of fat" was likely to suggest to viewers that a Jaffa Cake was low in fat: it was therefore a “low fat” claim. In order to bear a “low fat” claim foods may have no more than 3 g of fat per 100 g whereas Jaffa Cakes contained 8 g of fat per 100 g (United Biscuits (UK) Ltd t/a McVitie's, 15 October 2008). Similarly an ad for Maltesers, which contain 505 calories per 100 g, was found to breach the rules because the claim “less than 11 calories each” was likely to suggest that a Malteser was low in calories; which would be equivalent to a “low energy” claim for which the condition of use is that the product has no more than 40 kcal per 100 g (Mars UK Ltd t/a Mars Snackfood, 15 October 2008).
Marketers must take care when seeking to make a statement regarding the ingredients of a product that they do not make an implied nutrition claim by presentation. In the context of the ad as a whole, in which Father Christmas discussed having put on weight after eating too many mince pies, the claim "107 calories just the ticket", was considered to give the impression that a two-finger Kit Kat was “low in energy” when in fact the product had 510 kcal per 100 g (Nestlé UK Ltd, 16 June 2010).
Comparative nutrition claims
Comparative nutrition claims are permitted but the circumstances under which they can be made are restricted, not least because there are only four comparative nutritional claims listed in the Annex. 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. Regrettably, because it reflects the requirements of the underlying Regulation, this rule is, on first reading, fairly opaque. However ASA rulings give practical examples of how it applies in practice.
Again, marketers must take care in the presentation of claims to ensure that they do not make comparative claims by accident. The ASA upheld complaints regarding a TV ad and press ad for Nestlé’s Battle of the Breakfast campaign because the overall message of the ads was that their products were of greater nutritional value than the other foods which is why they were able to win the “battle”. The ASA also investigated the website copy which was linked to the “Battle of the Breakfasts” campaign. The website provided the facility for consumers to see values for each nutrient along with the percentage of GDA (side-by-side) of various breakfasts, but the ASA did not consider that the information was presented in a way which suggested that Nestlé’s cereals had particular beneficial nutritional properties compared to the non-cereal breakfast options. Because of this the rules of comparative nutritional claims were held not to apply to the website (Cereal Partners UK, 31 July 2013).
Comparative claims can only be made against foods in the same category of food (not meal) or which are ‘alternatives for consumption’. Ads which compared cereal with jam on toast and cereal with croissants breached the Code because, although these might both be eaten at breakfast, they were not considered foods of the same category (Cereal Partners UK, 31 July 2013). An ad for a meat substitute product which made the comparative nutritional claim “80% less saturated fat than lean mince beef” was considered acceptable because the ad made it clear the products were an alternative to meat, and so it was valid to compare their nutritional properties to meat (Marlow Foods Ltd, 10 October 2012).
Marketers may not make a comparative nutritional claim against a product which is itself able to bear a nutrition claim. An ad which compared vitamin levels in frozen vegetables to fresh vegetables breached the Code because fresh vegetables are able to bear the nutritional claim “source of vitamin C” (Birds Eye Ltd, 17 August 2011). Ads which made “reduced saturated fat” nutrition claims in comparison to products which could not make “low in saturated fat” nutrition claims were held to be acceptable by the ASA (Unilever UK Ltd, 15 August 2012, Marlow Foods Ltd, 10 October 2012).
It is possible to use one product as the sole reference for comparison provided that product is representative of the products in its category (Rule 15.3.1). The difference must be stated in the marcom and must relate to the same quantity of food (Rule 15.3.2, Unilever UK Ltd, 15 August 2012).
The Department of Health has produced guidance in relation to the wider application of the Regulation which includes information on the interpretation of Nutrition claims and is available here.
See "Food: General"