New ASA treatment of health claims in food advertising


8 January 2013

On 14 December 2012, Commission Regulation (EU) No. 432/2012 (which established a list of permitted health claims for use on foods) came into force.  As a result, the Advertising Standards Agency (“ASA”) will change the way that it considers health claims, meaning those that were acceptable to the ASA before this date may now be prohibited.  This will bring health claims into line with the approach already adopted in relation to nutrition claims, where the only nutrition claims permitted are those listed in Annex of EC Regulation 1924/2006.

What are health and nutrition claims?

Health claims refer to the link between a food and health (for example “Protein is needed for normal growth and development of bone in children”).  Nutrition claims refer to the nutritional properties of a food (for example “low in salt”).

Increased scrutiny

Previously, the ASA assessed health claims in light of the general rules against misleading advertising.  From 14 December 2012, they are to be considered primarily under Rules 15.1 and 15.1.1 of UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (“CAP Code”) and Rule 13.4 of UK Code of Broadcast Advertising (“BCAP Code”), which state that only claims authorised by the EU Register of nutrition and health claims established by the European Commission (the “Register”) will be permitted.  There remain some claims which have not yet been authorised or rejected; the previous rules will continue to apply in relation to these until the European Commission reaches a decision on their acceptability.

Points to note

Brand owners are more likely to be familiar with these principles from a labelling perspective rather than in the context of advertising.  In order to avoid falling foul of these more rigorous rules, food advertisers should remember the following:

  • General health claims need to be accompanied by a specific authorised health claim. So, for example, if the words “good for you” were used to describe a product, this would need to be accompanied by an authorised claim in the Register which explains why the product is good for you, such as “…because it contains calcium, needed for the maintenance of normal bones”.  The Committee of Advertising Practice has indicated that the term “general health claims” is likely to be interpreted widely, and so many common descriptions of food such as “wholesome” and “superfood” are likely to be caught.
  • Advertisers must hold documentary evidence that the food against which a claim is made contains the amount required of an ingredient to satisfy the conditions of use specified in the Register.  For example, to make the claim that a food contributes to the reduction of time taken to fall asleep as it contains melatonin, the food would need to contain 1mg of melatonin per quantified portion as specified in the Register (and the advertiser would need evidence to prove this).
  • Advertisers may only change the wording of the claims from that used in the Register to aid the understanding of consumers.  This means that claims can be rephrased to make them more consumer-friendly, provided that they keep the same meaning for the consumer.  Care must be taken to avoid exaggerating claims.  The Department of Health recently released informal guidance on how far food businesses can depart from the approved wording of health claims (see previous article here).  For example, one of the authorised claims for iron in the Register is “Iron contributes to normal cognitive function”.  It would be permissible to change this to:
  • “Iron plays a role in normal cognitive function”; or
  • “Iron supports normal cognitive function”,

but not:

  • “Iron stimulates normal cognitive function”;
  • “Iron optimises normal cognitive function”; or
  • “Iron increases cognitive function”,

(as these would be interpreted as exaggerations).

  • Claims must be made in relation to the relevant nutrient or food only, not the product as a whole.  For example “Copper contributes to the normal function of the immune system” would be acceptable (as this is one of the authorised claims for copper in the Register), whereas “Organoflakes contribute to the normal function of the immune system” would not.
  • Advertisers must make clear how much of a specified product a person needs to consume in order to obtain the benefit claimed (where this is a condition of use in the Register).  For example, if making the claim that sugar-free chewing gum contributes to the neutralisation of plaque acids, the advertiser must inform consumers that this beneficial effect is obtained by chewing the gum, for at least 20 minutes, after eating or drinking.  Another example is if making the claim that beta-glucans contribute to the maintenance of normal blood cholesterol levels, the advertiser must inform consumers that this beneficial effect is obtained with a daily intake of 3g of beta-glucans from oats, oat bran, barley, barley bran, or from mixtures of these beta-glucans.

For more information, please contact:

Andrew Terry
Principal Associate
Tel: +44 207 919 4828
Andrewterry@eversheds.com

Chloe Chittock
Associate
Tel: +44 20 7919 0633
Chloechittock@eversheds.com

 

Chloe Gastrell
Chloe Gastrell, Senior Associate
e: chloegastrell@eversheds.com
t: +44 20 7919 0633
m: +44 782 552 1323