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
A reduction of disease risk (“RDR”) claim will usually refer to a specific risk factor for a particular disease which can be decreased by consuming a food.
This is not the same as a claim to prevents, treats or cures human disease, which 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”.
In 2020, during the COVID-19 pandemic, multiple marketers made claims (direct and implied) that their food and food supplement products could help protect against the flu and other viruses or, and in at least one instance, prevent COVID-19. Such claims were considered to be disease prevention or treatment claims that were prohibited (Chuckling Goat Ltd, 13 May 2020 and Revival Drinks Ltd, 27 May 2020).
In 2021 a YouTube pre-roll ad for a food supplement included testimonials which made included claim “I don’t get sick”, “my pain totally disappeared” and the product “decreased my anxiety”. The ASA subsequently ruled that the ad made prohibited claims that the food supplement could prevent, treat or cure disease (Lyma Life Ltd, 22 September 2021).
Marketers should also be aware that claims that a food product can treat or prevent hangovers may also fall under the definition of a prohibited claim to prevent or treat human disease, even though it is a self-inflicted health condition (Bounce Back Drinks Ltd, 22 January 2020).
Marketers may make reduction of disease risk claims (RDR) for food products but only those that appear on the GB (NHC) 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 previously ruled against ads which did not include “high cholesterol is a risk factor in the development of coronary heart disease” in the presented claim (Unilever UK Ltd, 16 October 2013).
In 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 included the claim “last year, my mum fell badly” 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". The ad 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 claims "Reduces blood pressure", "Helps prevent infections" and "Lowers 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).