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
Overview
The rules on claims that can be made in marketing communications for foods (including beverages and food supplements) have changed dramatically over the last few years. This article provides a brief overview of the key points. Please see Food: General for more information about the background to Section 15 and the specific AdviceOnline articles for the relevant rulings and more detailed guidance.
“Nutrition” claims refer to the nutritional benefit of a food and must comply with the criteria set out in the relevant Register (rule 15.1.1). For more information, see Food: Nutrition claims.
“Health” claims are those which refer to a relationship between a food or ingredient and health. Health claims may only be made if they are listed as authorised in the GB (NHC) Register (rule 15.1.1). For more information and guidance on whether you can "flex" the wording of health claims, see Food: Health Claims.
Health claims include slimming and weight loss claims. See Weight control: Food and Food Supplements.
“General health” claims refer to the general benefits of a nutrient or food for overall good health and must be accompanied by a specific authorised health claim (rule 15.2). For more information, see Food: General Health Claims.