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), or relevant 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” 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.
‘Specific’ health claims for a food should only be made if the claim is "authorised" and listed on the GB (NHC) Register, or relevant register (rule 15.1.1). ‘General’ health claims reference a general benefit of a nutrient or food for overall good health or health-related well-being and are permitted in ads, provided they are accompanied by a relevant specific authorised health claim from the relevant register.
Is probiotic a health claim?
The ASA has previously ruled on ads which included references to “probiotic bacteria”, “probiotic strains” and “probiotic formula” and ruled that in those contexts, the term "probiotic" within those claims was a ‘specific’ health claim because it implied a relationship existed between the substance and health. When assessing the claims, the ASA took into account the guidance provided by the Department of Health and Social Care and the European Commission in relation to the interpretation of the Regulation which underpins Section 15 of the CAP Code. The ASA considered that in these contexts the “probiotic” claims amounted to unauthorised health claims and therefore upheld the complaint (Probiotics International Ltd, 26 February 2014).
The ASA has also ruled on an ad for a “unique probiotic Bimuno powder” (a digestive health product). The ad made contextual references to ‘prebiotic’ e.g. “prebiotic power for your gut” and “discover the valuable role unique prebiotic Bimuno powder can play in increasing and energising your good gut bacteria….” In that wider context, the ASA considered the word “probiotic” was presented as a specific health claim that was not authorised (Clasado Ltd, 4 June 2014). Similarly, in 2015 the ASA considered that an ad for a “nutraceutical beverage” which listed “probiotics” amongst its ingredients, presented “probiotics” (as well as “enhanced weight management” and “immune support”, amongst others) as an unauthorised health claim in that context (Le-Vel Brands LLC, 15 July 2015).
As with many of the claims that fall within the scope of the rules underpinned by the Nutrition and Health Claims Regulations, the situation is quite complex and CAP is aware of Department of Health and Social care guidance which suggests that the word “probiotic” could also be considered a general health claim in some contexts – making it acceptable in such contexts provided it is accompanied by an authorised specific health claim that is sufficiently closely related to the general health claim.
There is a risk that the ASA could consider ”probiotic” unacceptable unless it is listed as an authorised specific claim on the GB (NHC) Register (or relevant register) or, it is (taking into account the full context of the ad) clearly only a reference to general, non-specific benefit for overall good health or health-related well-being and is accompanied by a specific health claim (listed as authorised on the relevant Register) that is sufficiently closely related to the general health claim. The Department of Health and Social Care guidance (Section 10.2) states that this is likely to mean the claim would need to be accompanied by an authorised health claim for the specific probiotic strain in the food in question.
In 2023 the ASA considered an ad for apple cider vinegar which included references to “live probiotic foods” and “with premium live probiotics to boost gut health”. In the context of the general claims about “gut health” in the ad, the ASA ruled that these were likely to be interpreted as general health claims and therefore acceptable if accompanied by a relevant authorised claim from the relevant register. In this case, the claims were not accompanied by an authorised claim and so the general health claims were ruled problematic (Willys Ltd, 15 March 2023).
Ultimately, whether the claim “probiotic” is likely to be considered a general health claim or a specific health claim is likely to depend on the context in which it is used.
What about prebiotic?
The ASA has previously ruled that, depending on context and presentation “prebiotic” could also be interpreted as an unauthorised health claim (Clasado Ltd, 4 June 2014)
What about other claims in ads for this product type?
Claims in ads regarding bacteria which are not nutrition or health claims will be dealt with under the general rules against misleading advertising. Therefore, if a statement regarding bacteria does not refer to a nutritional benefit or a relationship between a food or ingredient and health, the marketer will still need to hold evidence to substantiate the claim (rule 3.7).
In 2013 the ASA investigated whether the claim "Yakult's unique bacteria are scientifically proven to reach the gut alive" could be substantiated. Because it considered that the body of evidence submitted indicated that significant numbers of viable LcS organisms survived transit to the gut after consumption of fermented milk products, such as the Yakult product, the ASA concluded that the claim had been substantiated and the complaint was not upheld (Yakult UK Ltd, 15 May 2013).