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that is in force at the end of the transition period will remain in force after this point unless it is subsequently repealed.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.
Marketers promoting a food (or a soft drink) or food supplements in relation to weight should take the Food Rules into account and note that weight loss and other claims of this nature, which directly result in an effect on one’s health, are considered to be health claims for the purposes of Section 15 of the Code. Article 2 of Regulation (EC) 1924/2006 on Nutrition and Health claims made for Foods, defines a health claim as “any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health...”
Health and nutrition claims
A rate or amount of weight loss
Marketing communications must be obviously identifiable as such
Testimonials and before and after photographs
Claims in product names
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 EU Register of nutrition and health claims (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).
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 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). There may be some legal exceptions to this, but in this instance we urge marketers to seek legal advice.
Similarly, nutrition claims are only permitted if they are listed in the Annecx of Regulation (EC) No 1924/2006. Ads must conform with the conditions set out in that Annex (NAH Foods Ltd, 31 July 2013)
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 made were not based on authorised claims which appeared on the EU 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 CAP Code (LA Muscle Ltd, 4 December 2013). See the Weight control and slimming section of the CAP Code.
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, 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 EU 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 on the EU Register (ketonepremium.com, 10 July 2013). See Weight control: testimonials and Before and after photos.
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).
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 European Commission (15.6.2, Big Juice Ltd, 17 April 2013)
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).
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).