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.
Energy drinks now come in many different forms. General categories include caffeine-based drinks, hypotonic drinks, isotonic drinks and hypertonic drinks.
Marketers should be aware that claims about the nutritional benefits of energy drinks are covered by the European Regulation (EC) No 1924/2006 on Nutrition and Health Claims Made on Foods, which came into force on 1 July 2007. That legislation applies to specific claims such as “low in fat”, “low in salt” and “low in sugar” and variations on them, which are deemed “nutrition claims”. Nutrition claims are those that refer to a food or an ingredient having a nutritional benefit because of a calorific value (energy) or a nutrient or another substance that it does or does not contain.
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. For the Annex and conditions applying to such claims please click on the following link:
http://ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Nutrition claims might differ in wording to the claims listed in the Annex, but if they are likely to have the same meaning for the consumer they will be subject to those same requirements. Essentially, claims about any element of a food seeming to offer a nutritional benefit to the consumer are likely to be considered “nutritional claims” and should comply with the Annex.
The Regulation also applies to health claims: those that refer to a relationship between a food or an ingredient and health. Under the Regulation, marketers may, for the first time, make disease risk reduction claims, such as “eating X could help reduce the risk of heart disease”.
When the European Union Register of authorised health claims is complete, no health claim may be made for a food unless it is on the Register:
http://ec.europa.eu/nuhclaims/?event=search&status_ref_id=4
The Regulation provides for the possibility that, in future, claims for foods be assessed according to their nutritional composition. However a nutrient profiling system to support such requirements is yet to be established.
The Code states that clinical trials, if necessary, conducted on humans, should be held in support of all medical and scientific claims. The Help Note on Substantiation for Health, Beauty and Slimming Claims outlines the types of evidence both CAP and the ASA expect to see in support of claims. If evidence is held, marketers should ensure that the claims made for the product relate specifically to what (if anything) the evidence proves.
For caffeine-based drinks, CAP understands that opinion is divided on the effect of caffeine on mental capacity. CAP generally advises against explicit claims such as “improves concentration” and recommends a conditional claim that reflects the divergence in informed opinion. A claim such as “Some experts believe that caffeine has a mild stimulatory effect (improving reaction time, concentration and endurance)” is likely to be acceptable, depending both on the level of caffeine in the product and whether the marketer can provide product-specific trials if necessary (Red Bull Company Ltd, 24 January 2001).
CAP also understands that the Food Standards Agency (FSA) has expressed concern about high caffeine consumption by pregnant women. Marketers might want to seek more information from the FSA on www.foodstandards.gov.uk. Caffeine drinks can inhibit the body’s intake of certain nutrients, such as iron, and are not recommended for children at mealtimes.
Hypotonic drinks are dilute carbohydrate electrolyte solutions that are less concentrated than body fluids. Those drinks are rapidly absorbed into the body and usually used during training. Ads for them often claim the drinks rehydrate the body and replenish energy (GoPack Superdrinks Ltd, 17 January 2001).
Isotonic drinks have a carbohydrate electrolyte composition similar to that of body fluids and are usually consumed later in the post-workout recovery process to boost energy intake. Ads for them often claim the drinks boost performance, quicken rehydration and optimise fluid levels during workout (SmithKline Beecham plc, 11 March 1998, and Coca Cola Great Britain, 27 August 2002).
Hypertonic drinks have a higher carbohydrate electrolyte composition than body fluids and usually contain large amounts of carbohydrates. They are usually used by sportsmen during periods of heavy training when energy expenditure is highest.
Marketers should not claim that combining carbohydrates with proteins increases energy or delays fatigue more effectively than carbohydrates alone; the ASA has assessed evidence for that claim but considered that not enough research had been conducted to support it (H5 Ltd, 10 May 2006).
Marketers should avoid exaggerating the benefits of their products for sports performance. Although it is likely to be acceptable to talk in general terms about increasing energy and hydration levels for the types of drinks described above, more specific claims require rigorous substantiation. Also in 2006, H5 did not prove that its drink helped cyclists complete a time trial six minutes faster than a competitor’s product because the trials were conducted on too few participants (CO2/H5 Ltd, 22 November 2006). And claims that the fruit juices and carbohydrates in the Wellman drink could “restore natural energy” and that its B-complex delivery resulted in rapid energy release were rejected by the ASA because of a lack of product-specific evidence (Vitabiotics Ltd, 28 November 2007).
Drinks that are a concentrated source of carbohydrate energy and replenish carbohydrate stores have been shown to have a positive effect on mental performance. In March 2004, the ASA rejected complaints about a GlaxoSmithkline product that contained glucose syrup and caffeine and was advertised as “brain energy” (GlaxoSmithkline plc, 17 March 2004). The ASA considered that the advertiser had proved the drink provided a temporary boost in mental performance. Similarly, claims that dehydration can cause mild impaired mental and physical performance are likely to be acceptable, as are claims that re-hydration with water can reverse those negative results (Britvic Soft Drinks Ltd, 19 December 2007). That said, the ASA has yet to see sufficiently rigorous evidence for a product that hydrates better than water, or is structured differently (Penta UK, 2 March 2005), and marketers should avoid such claims unless they hold adequate scientific proof.
Marketers promoting a product on the basis that it is “water” (giving the impression that it is pure, unprocessed and contains no calories or additives) should ensure the product contains no other ingredients (GlaxoSmithKline UK Ltd, 6 April 2005).
The title “Energy drink” is likely to apply to drinks that contain sugar and water but marketers should be aware that claims for those products should be restricted to replenishing (for the water element) and boosting energy (for the sugar element). The ASA has upheld complaints that sweets, Aquadrops, offered “instant hydration” and, unless they contain water, products should not be described as “hydrating” (Mars UK Ltd, 23 June 2004).
See ‘Food: General’
Last modified : 30 December 2011