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
Health claims (weight control)
A rate or amount of weight loss
Marketing communications must be obviously identifiable as such
Testimonials and before and after photographs
Health claims (general)
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 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).
Heath claims (weight control)
Marketers promoting a food, soft drink or food supplements in relation to weight should take the Food Rules into account and note that claims that a food product could cause weight loss, or help to maintain weight after weight loss, are health claims for the purposes of Section 15 of the Code. The ASA investigated an ad which emphasised the low calorific content of products described as ‘skinny foods’ and implied that they could contribute to weight loss. Because the products did not contain anything that would produce the physiological effect of weight loss or maintenance, for which there was an authorised health claim relating to weight loss or maintenance, and for which the product met the relevant conditions of use, the ASA found that the ad breached the Code. (Not Guilty Food Co Ltd, 3 April 2024)
Health claims that refer to a rate or amount of weight loss [JG1] are not permitted when made in relation to a food. The ASA considered that consumers would understand the claim “I’ve lost 8kgs” to mean that, as a result of consuming the advertised supplements, the person giving the testimonial had lost 8 kg of weight. Because the ad included a health claim, made in relation to food, that referred to an amount of weight loss, the ASA concluded that it breached the Code. (Happy Koala LLC, 17 July 2024).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. Furthermore, a product should be marketed in accordance with the conditions of use for that specific authorised claim (Protein World Ltd, 8 April 2015).
Similarly, nutrition claims are only permitted if they are listed in the GB (NHC) Register. Nutrition claims are defined as those that state, suggest or imply that a food has particular beneficial nutritional properties, due to the nutrients or other substances it contains, contains in reduced or increased proportions, or does not contain. Only nutrition claims listed in the Annex of the Regulation are permitted in ads promoting foods, and advertisers must ensure that the food met the conditions of use associated with the claim in question. (NAH Foods Ltd, 31 July 2013) For example, in 2021, the ASA noted that “Zero teaspoons of added sugar” was a nutrition claim. (Not Guilty Food Co Ltd, 14 April 2021).
A rate or amount of weight loss
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). The ASA ruled against an ad which stated “LOSE 15-20% OF BODY WEIGHT” because it referred to an amount of weight loss in relation to a food supplement and therefore breached the Code. (Ovira Australia, 11 December 2024). See also Premium Health Europe BV, 19 April 2023.
Marketing communications must be obviously identifiable as such
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 or creating influencer posts on social media should ensure that they make it clear that the material is a marketing communication (ketonepremium.com, 1 May 2013; Not Guilty Food Co Ltd 3 April 2024).
Testimonials and before and after photographs
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 on the relevant register. (Premium Health Europe BV, 19 April 2023). 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 on the EU Register (ketonepremium.com, 10 July 2013). See Weight control: testimonials and Before and after photos.
Social responsibility
Ads involving celebrities or social influencers should be mindful to avoid encouraging a lifestyle, diet or body shape that could be considered to be socially irresponsible, especially if presented directly by those individuals to their followers on social media. In 2019, the ASA ruled against social media posts by three celebrities for a variety of food supplement products which made direct or implied references to fat reduction or weight loss (and changes in body shape). The ASA ruled that, alongside unauthorised health claims and references to unacceptable rates of weight loss, some of the social media posts created the irresponsible impression that it was necessary or desirable for those who were already slim to use products to suppress their appetite and lose weight. The ASA also ruled that some of the ads also irresponsibly suggested that suppressed appetite and weight loss in those who were already slim could result in increased confidence and that the manipulated photographs made some of the aspirational celebrities look artificially slim. The ASA ruled that all of these approaches created irresponsible messages in ads for an appetite suppressant (BoomBod Ltd, 23 October 2019, Protein Revolution, 23 October 2019).
Suggesting that significant amounts of weight can be lost very rapidly, or that diet and exercise are unnecessary or inconvenient is also likely to be considered irresponsible (Premium Health Europe BV, 19 April 2023)
Obesity
Obesity is frequently associated with medical conditions for which medical supervision should be sought. Therefore, a claim to treat or remedy obesity is likely to be problematic unless that advice, diagnosis or treatment is given by a suitably qualified health professional (13.2).
Marketers should also note that claims that state or imply that a food prevents, treats or cures human disease are only acceptable if authorised by the Department of Health and Social Care (DHSC) ((Rule 15.6.2, (Premium Health Europe BV,19 April 2023).
Organic
Marketers should not claim that food is “organic” or is “made with organic ingredients” unless it comes from farmers, processors or importers who: follow the minimum standards set down in Council Regulation (EC) 834/2007; are registered with an approved certification body; and are subject to regular inspections (Lean Muscle X, 21 August 2013).
Claims in product names
All product names, even if they are trademarked, 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 from the GB (NHC) Register.
The ASA ruled against the trademarked brand name “Skinny Spices” would be understood as a health claim about weight loss or maintenance must therefore be accompanied by an authorised health claim relating to either weight loss or maintenance. Because it was not, the ad breached the Code. (Not Guilty Food Co Ltd, 14 April 2021). See Weight control: Claims in names
See Weight Control: General and other ‘weight control’ entries. See also, Food: General, Food: General Health Claims’ and Food: Health Claims and Organic Foods.