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that is in force at the end of the transition period will remain in force after this point unless it is subsequently repealed.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.
This section should be read in conjunction with the entry on Health: Therapies (General)
How are Bach and other flower remedies regulated?
Bach flower remedies are described as “a system of 38 Flower Remedies to help mankind achieve joy and happiness”. CAP understands that at the time the Medicines Act (1971) was implemented, Product Licences of Right (PLRs) were issued to all medicines, including homeopathic remedies, and that a number of PLRs were granted for Bach flower remedies.
In January 2014 the MHRA took the decision that Bach flower remedies would no longer be regulated as medicines but instead be classified as foods.
What claims are likely to be acceptable?
CAP understands that some Bach flower remedies contain levels of alcohol which would preclude them from bearing health claims altogether. While it may be possible for a flower remedy to carry a nutrition claim, the nutrition claims permitted for products containing alcohol are limited. (Rule 18.17)
In 2015 the ASA investigated the claim “Can't switch off … Rescue Night range helps your mind switch off, so you can enjoy a natural night's sleep”. Whilst the ad did not make explicit claims to aid or improve sleep, the ASA considered the combination of claims and images gave the impression that the product would aid sleep or that it would help consumers fall asleep easily. The ASA ruled the marketer had been unable to demonstrate that health claim was authorised or ‘On-hold’ in relation to the ingredients of the product. It was also noted that even if the claims had been ‘On-hold’, the marketer would have been required to hold robust clinical evidence to support the claim and such evidence was not supplied (A. Nelson & Co Ltd, 11 March 2015).