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.
European Nutrition and Health Claims Regulation
Marketers must ensure they are familiar with European Regulation (EC) No 1924/2006 on Nutrition and Health Claims Made on Foods which applies to nutritional claims for vitamins and minerals in foods.
It is our understanding that, because the term "antioxidant" refers to a function of the body, the claim "contains antioxidants" is likely to be seen as a health rather than a nutrition claim. The European Union Register of Authorised health claims now exists, however it is not yet complete. The Register can be viewed here:
The European Union Register of Authorised health claims
Once the Register is complete, the only health claims which will be acceptable will be those on the Register. Until then ASA will continue to investigate claims that are not listed on the Register (and have not been specifically rejected) and will require advertisers to provide substantiation to support them.
We understand that marketers may now make a nutrition claim only if it appears in the Annex to the Regulation and if their product meets the criteria set out in the Annex. Nutrition claims may differ in wording to those set out in the Annex but will still need to meet the relevant criteria. The Annex to the Regulation can be found here http://www.dh.gov.uk/health/2011/11/health-claim/
Marketers should be aware that any claims deemed to provide a nutritional benefit to the consumer are likely to be considered “nutritional claims” and should therefore seek guidance from the Department of Health if they suspect they are making such a claim. Guidance on the Regulation can be accessed here:
www.food.gov.uk/multimedia/pdfs/ec19242006complianceguide.pdf
Under the Regulation, marketers may, for the first time, make disease risk reduction claims but the only acceptable claims of this type are those on the Register:
The European Union Register of Authorised health claims
Aside from approved disease reduction claims, 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).
The situation in relation to producing marketing communications under the Regulation is complex and continues to develop. Owing to changes in the timescale, certain aspects of the Regulation which have been incorporated into the CAP Code are not yet in force. Please contact the Copy Advice team if you have any questions in relation to the status of particular rules of the CAP Code.
General Background regarding Antioxidants for consideration during transitional periods
Antioxidants have been the subject of specific and general health claims in advertisements for many years, but the area is a very contentious one. CAP understands that there has been a great deal of debate within the scientific community about their potential benefits over the last 30 years but that opinion is divided. Rule 3.13 states that marketing communications must not suggest that their claims are universally accepted if a significant division of informed or scientific opinion exists.
That said, there appears to be increasing skepticism over whether the basic chemical processes associated with antioxidants that are known to take place in a laboratory environment can be translated into health benefits for humans.
The ASA has investigated health claims for antioxidants on numerous occasions. To date, neither the ASA or CAP have seen evidence that antioxidants have direct health benefits – either general or specific.
CAP understands that vitamin A (as beta-carotene), vitamins C and E and selenium have antioxidant functions or are necessary for antioxidant activity. Other substances, such as polyphenols (including flavanoids) and carotenoids also have antioxidant functions. CAP understands that the active vitamin A (retinol) has no antioxidant activity. Antioxidant activity can be described as “preventing oxidation (for example of polyunsaturated fats fatty acids)” or “neutralizing free radicals” (CAP understands that free radicals can have both beneficial and detrimental effects). But different antioxidants have different functions and marketers wanting to describe their functions in ads should use descriptions relevant to the particular antioxidant their product contains and should not imply any health benefit. They should of course hold evidence that their product has been shown to fulfill these functions in humans.
Marketers who go beyond specific factual statements for antioxidants by implying or stating either a general or specific health benefit (for example “good for you”, “protects the body”, “keeps your heart healthy” or “prolongs life”) would also need to hold rigorous evidence based on trials on humans (Tetley GB Ltd, 23 October 2002; POM Wonderful, 8 April 2009 and Tetley GB Ltd, 3 June 2009). But more than simply demonstrating the aforementioned functions, that evidence would have to show that the consumption of the specific antioxidants present in their product had been proven to have a direct health benefit (United Kingdom Tea Council 26 September 2007 and The British Coffee Association, 4 March 2009).
It is perhaps worth reiterating that the ASA has evaluated a large body of scientific studies, which, despite being rigorously conducted, have proved conflicting and inconclusive as to the benefits of consuming antioxidants. At this stage, marketers are therefore advised against making any health benefit claims for antioxidants unless they are confident that they have new evidence – based on trials on humans – relating directly to the specific antioxidants their product contains.
Fresh Fruit and Vegetables
Marketers should not make comparisons between their products and fresh fruit and vegetables that imply an equivalent contribution to health (United Kingdom Tea Council, 26 September 2007 and The British Coffee Association, 4 March 2009. See also ‘Tea: Health Claims’). Rule 15.3 sets out the requirements for comparative claims, which must compare the difference in the claimed nutrient to a range of foods of the same category which do not have a composition which allows them to bear a nutrition claim.
Although the benefits of eating fruit and vegetables for maintaining heart health are well established, CAP understands that evidence is inadequate to show that antioxidants make any special contribution. In fact, evidence exists to the contrary. This is why the claim that “antioxidants are good for your heart” is likely to mislead. Furthermore, because the established functions of antioxidants are not specific to certain organs of the body, it is unlikely to be acceptable to claim, for example, that they directly affect, say, the skin.
Vitamins, Minerals and Recommended Daily Amount (RDA)s
Marketers should not confuse the established functions of vitamins and minerals with their antioxidant functions. For example, antioxidant activity is one of the functions of Vitamin C, but marketers should not claim that antioxidants are necessary for healthy blood vessels (another known function of Vitamin C).
Some vitamins and minerals have RDAs associated with them, but marketers should not claim or imply that people need to consume a specific amount of antioxidants (i.e. imply that there is a general RDA for “antioxidants”), nor that supplementing the diet with antioxidants is necessary.
Sometimes marketers make claims such as “tomatoes are better for you than carrots because they contain more antioxidants”. This kind of claim is unlikely to be acceptable. If they are referring to antioxidant substances with no RDAs, such as flavanoids, marketers would need to hold evidence that increased levels provide increased benefit in order to make such a claim; once again, that kind of evidence has not yet been seen by the ASA or CAP in relation to antioxidants.
Acceptable statements
It is important to note that different antioxidants carry out different functions, some of which require the presence of other antioxidants or nutrients. Marketers should therefore avoid making specific statements about “antioxidants” in general if the particular antioxidants present in their product do not affect the specific function on which they are basing their claims. For example, they should not claim “this product contains antioxidants; antioxidants prevent the oxidation of polyunsaturated fatty acids in the body; therefore this product prevents the oxidation of polyunsaturated fatty acids in the body” if the antioxidants present in the product are not associated with this function. Naturally, marketers should hold evidence for all health benefit claims made in advertisements; although the Code does not explicitly require it, they may wish to state in their ads the specific nutrients that are present in their product (rather than talking in generic terms about “antioxidants”).
To sum up, currently, it may be acceptable to claim, for a product capable of making the health claim that it contains antioxidants and which forms part of a balanced diet, that the product is a “good source of antioxidants (which have X established functions)”.
Other
The efficacy of topically-applied antioxidants often found in cosmetic creams has not, to date, been proved. The Copy Advice team is unaware of any acceptable efficacy claims for such antioxidants.
See also ‘Anti-Ageing Pills and Supplements’, ‘Anti-Ageing Creams’, as well as ‘Functional Foods’, ‘Food General’ ‘Tea: General’, ‘Tea: Flavanoids’, ‘Tea: Health Claims’, ‘Food Supplements’.
Last modified : 02 April 2012