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that is in force at the end of the transition period will remain in force after this point unless it is subsequently repealed.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.
Section 15 of the CAP Code sets out the rules which specifically relate to marketing communications concerning food, food supplements and associated health or nutrition claims. It reflects the requirements of Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (the ‘Regulation’).
Whilst claims that a food can prevent, treat or cure a disease remain unacceptable, it is possible to make reduction of disease risk claims which have been listed as authorised on the EU Register.
- Claims to prevent, treat or cure a disease are unacceptable
- Reduction of disease risk claims must be on the Register
- Relevant information must be included
- Ads must refer to the nutrient the RDR claim has been authorised for
- Authorised health claims should not be confused with RDR claims
- Example rulings where the RDR claim was not on the Register
A reduction of disease risk (“RDR”) claim will usually refer to a specific risk factor for a particular disease which can decreased by consuming a food. This is not the same as a claim to prevent the disease.
Claims that state or imply a food prevents, treats or cures human disease are not acceptable in marketing communications for food products (Rule 15.6.2). Such medicinal claims can only be made for a medicinal product licensed by the MHRA, please see “Healthcare: Medicinal claims”.
Claims a that a product could prevent hay fever "Your natural way to prevent springtime sneezes!", "seasonally-related symptoms such as sneezing, itchy eyes and runny nose" and a reference to pollen, were ruled to breach the Code (Pharma Nord (UK) Ltd, 10 December 2014).
Marketers may now make reduction of disease risk claims for food products but only those that appear on the Register.
RDR claims must be presented clearly and without exaggeration. CAP understands there are no transitional periods for these claims, and they can only be made once on the Register. See below for example rulings where the RDR claim was not on the Register.
Omitting information about the disease which is included in the authorised reduction of disease risk claim is likely to be considered to change the meaning of the claim. The ASA has ruled against marketing communications which did not include “high cholesterol is a risk factor in the development of coronary heart disease” in the claim (Unilever UK Ltd, 16 October 2013; Johnson & Johnson Ltd, 14 May 2014).
The ASA challenged the claim "Benecol which is proven to lower cholesterol" when the authorised reduction of disease risk claim was specifically for plant stanol esters. Although on-screen text referred to plant stanols, the relative prominence of the claims in the voice-over and in larger on-screen text caused the ASA to rule that the relationship between the food and the health benefit had not been made sufficiently clear (Johnson & Johnson Ltd, 14 May 2014).
Advertisers should take care that the overall impression of an ad does not imply that a product can reduce the risk of disease. An ad which was based around the authorised health claims "vitamin D contributes to the maintenance of normal bones" and "calcium is needed for the maintenance of normal bones" was found to breach the Code because the overall impression was that vitamin D in addition to calcium could help reduce the risk of suffering a bone fracture (Yoplait UK Ltd, 27 February 2013).
The ASA ruled against the claim “reduces cholesterol” because the advertiser did not show the claim was authorised by the European Commission, as required by rule 15.6.2 (Skoosh, 24 October 2012).
The ASA ruled that, in the context of the website it appeared, "Red Blood Cells become less sticky and stop forming into stacks called rouleaux. RBC rouleaux is one of the high risk factors for retinal degeneration in diabetics" would be understood by consumers to mean that consuming Original Quinton’s products could reduce a risk factor in diabetes. Without evidence that the claim was authorised on the EU Register, the ASA concluded the reduction of disease risk claim was in breach of the Code (Original Quinton UK Ltd, 22 October 2014).
The claims "the renewal process of bone generation slows down" and "This continued cycle can lead to the bone becoming more fragile and therefore the condition osteoporosis. Biocalth has been scientifically proven to help prevent this process" were considered reduction of disease risk claims which could not be made unless they were on the Register (Principle Healthcare International, 25 June 2014).
The ASA considered the claims” Discover the secret to a happy travel tummy. Your body's natural defence against 'foreign tummy bugs' are the good bacteria in your gut ... Most people rely on measures they can take once the problem has occurred but is there another approach?" suggested that the product could reduce a risk factor in the development of disease (Clasado Ltd t/a Bimuno, 4 June 2014).
A website with the heading "Are you over 50?" followed by a reference to cartilage wearing down, "creating the perfect environment for agonising pain to set in" and "Warning! There's no time to lose YOU NEED TO ACT NOW!", followed by a list of "common joint conditions" such as arthritis and sciatica, was considered to make reduction of disease risk claim, because it implied that the product could prevent cartilage wearing down and so reduce the risk of developing the stated joint conditions. Because the RDR was not authorised, the website breached the Code (Life Healthcare LLC t/a Joint Restorer, 12 November 2014).
The Natural Health Clinic, 16 January 2013