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
Marketers promoting sports supplements must take the Food Rules into account and note that weight loss, fat burning, muscle gain, increase endurance and other claims of this nature, which relate to an effect on one’s health, are considered to be health claims for the purposes of Section 15 of the Code.
Health and Nutrition claims
A rate or amount of weight loss
Marketing communications must be obviously identifiable as such
Claims in product names
Clothing and garments
Weight loss and muscle tone devices
Rule 15.2 of the CAP Code states that “References to general benefits of a nutrient or food for overall good health or health-related well-being are acceptable only if accompanied by a specific authorised health claim”. Therefore, health claims referring to general non-specific health benefits of the nutrient or food for overall good health, for example "good for you” or “healthy” must be accompanied by a specific authorised health claim which is listed as “authorised” on the GB (NHC) Register (rule15.1). The specific authorised claim must also be relevant to the general health claim so that it acts to clarify the general health claim made in the overall context of the ad.
The ASA ruled that the word "Superfood" was a general health claim which needed to be accompanied by a specific authorised health claim (Pharmacare (Europe) Ltd 11 June 2014).
The requirements of the regulation are strict in terms of the permissible wording of health claims. Health claims must be presented clearly and without exaggeration. The ASA is likely to investigate a complaint about a stated health claim which does not have the same meaning as an authorised claim which is listed on the GB (NHC) Register (previously the EU Register). Furthermore, a product should be marketed in accordance with the conditions of use for that specific authorised claim (Protein World Ltd, 8 April 2015).
One advertiser who stated that their food supplements were “scientifically shown to increase...muscle hormone levels, deposit more protein in muscle tissue, increase strength and muscle mass... have less fat around your stomach and thigh regions” was found to breach the Code because the claims were not based on authorised claims which appeared on the relevant Register. The ad also suggested that fat could be lost from specific parts of the body, and so, also breached rule 13.9 of the Weight control and slimming section of the CAP Code (LA Muscle Ltd, 4 December 2013).
Health claims that refer to a rate or amount of weight loss are not permitted in relation to food or food supplements (rule 15.6.6) and this was the matter of a 2013 ASA ruling (vitaburncoffee.com, 24 July 2013).
The ASA ruled against an ad which stated, “Achieve maximum weight loss…lose a ton of weight quickly…4 Times More Weight Loss…One blogger claims to have lost over 35 lbs in 40 days using the Green Coffee & Liposom combo” because the claims, including the implied, were not authorised on the relevant Register, and referred to a rate or amount of weight loss (DCG Limited, 19th June 2013 and Natural Health Network, 1 May 2013).
Rule 2.1 of the Code states that “marketing communications must be obviously identifiable as such”. Marketers creating ads in the style of news articles should ensure that they make it clear that the material is a marketing communication (Slimzene, 26 June 2013; ketonepremium.com, 1 May 2013).
The ASA treats before and after photos in the same way as testimonials or endorsements and so marketers must hold documentary evidence that they are genuine, and hold contact details from the person or organisation providing them. However, the visual claims implied by the before and after photos may render them problematic if they are seen to go beyond the meaning of an authorised claim. In 2012 the ASA ruled on a website which included photos of people who had lost weight because the implied weight loss claims were not authorised (ketonepremium.com, 10 July 2013). See Weight control: testimonials and Before and after photos.
All product names must comply with the Regulations and Section 15 of the Code. If a product name states or implies a health or nutrition claim, it must be accompanied by a relevant authorised health or nutrition claim. However exceptions may apply. For example, trademarks or brand names that existed before 1 January 2005 do not have to comply with this requirement until January 2022. Marketers must seek legal advice for relevant transitional periods (Vitabiotics Ltd, 26 March 2014).
Depending on the presentation, references to “energy” can be interpreted as health claims or nutrition claims under the EU Regulations.
In 2015 the ASA ruled that the claim “works twice as fast as any other energy gel” implied the product provided a nutritional benefit (providing energy at an increased rate) to those who took part in prolonged or high intensity exercise, compared to other energy gels. It was noted that this did not reflect the few energy related nutrition claims on the register and as such, was an unauthorised nutrition claim (Science in Sport Ltd, 17 August 2016).
In 2019, the ASA considered an ad for glucose tablets which contained a collection of claims and images which suggested that the food product would provide an immediate energy release. It was ruled that this presentation of this health claim was not the same as that which was authorised on the EU Register and which also appeared in the ad (Dextro Energy GmbH & Co KG, 13 February 2019).
CAP understands that steroids are available only on prescription and that the sale and consumption without prescription is illegal in the UK. Rule 12.12 of the CAP Code prohibits the advertising of prescription-only medicines to the public.
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”.
Marketers are advised that claims such as “Increases metabolism”, “Relieve arthritic pain” or “Increase your testosterone” are likely to be viewed as medicinal as are claims to treat or prevent obesity (Big Juice Ltd, 17 April 2013)
We have previously been informed by the MHRA that all products containing citrus aurantium, white willow bark, chromium picolinate, cyanotis vaga, tribulus terrestris and variations of androstenediol are medicinal. Marketers should contact the Medicines and Healthcare products Regulatory Agency (MHRA) if their products contain any of those ingredients before selling the product or preparing marketing campaigns for it.
Sports supplement marketers frequently offer sports clothing alongside their supplements. The clothing products usually offer support for specific parts of the body and are worn when working out. Marketers should not make claims that the product can prevent injury but they may claim that the products can provide support when working out.
Short-term loss of girth may be achieved by wearing a tight-fitting garment. The loss should neither be portrayed as permanent nor confused with weight or fat reduction (Rule 13.12). Marketers should not suggest that weight loss can be achieved by wearing particular garments. See CAP Advice on Weight control: Garments.
Claims (direct and implied) that devices can assist with weight loss, fat loss and muscle tone will need to be supported by robust documentary evidence most likely in the form of clinical trials (12.1).