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.
Claims relating to functional foods are covered by the Regulation on Nutrition and Health Claims Made on Foods. This legislation applies to specific claims such as “low in fat” (or sugar or salt), and variations on them, because they will be 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. A nutrition claim may only now be made if it appears in the Annex to the Regulation and if the product meets the criteria set out in the Annex:
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. Marketers should be aware that any claims deemed to provide a nutritional benefit to the consumer are likely to be considered “nutritional claims” (The FSA's Guidance on the Regulation can be accessed here: http://www.food.gov.uk/multimedia/pdfs/ec19242006complianceguide.pdf)
Health claims are those that refer to a relationship between a food or an ingredient and health, for example “omega 3 could help to keep your heart healthy”. The European Union Register is yet to be finalised. Once the Register is complete, the only claims which will be acceptable will be those on the Register. Until then the ASA will continue to investigate claims that are not listed on the Register (and have not been specifically rejected) and require substantiation to be provided for these claims. Progress on the claims can be found at www.efsa.europa.eu.
The ASA has looked at claims that foods can help deliver functional health benefits for consumers for tea (Tetley GB Ltd, 23 October 2002), spreadable fats (Unilever Bestfoods UK Ltd, 28 June 2006, and McNeil Consumer Nutritionals, 4 July 2001), beer (Coors Brewers Ltd, 10 March 2004), milk (Dairy Crest Ltd t/a St Ivel, 21 June 2006), pomegranate juice (RJA Foods Ltd, 13 December 2006) and ‘fortified’ water (Coca-Cola Great Britain t/a Beverage Services Ltd 7 October 2009). Complaints have been upheld usually as a result of a lack of evidence in support of the claims made.
Under the Regulation, marketers may, for the first time, make disease risk reduction claims but only if they are on the Register:
http://ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm
Marketers should remember that medicinal claims (with the exception of disease risk reduction) will still be subject to existing restrictions, namely the Food Labelling Regulations 1996, which state that it is illegal to make medicinal claims for any food (that it can prevent, cure or treat disease or an adverse medical condition). CAP advises marketers seeking clarification of what could constitute a medicinal claim to consult the Borderline Unit of the MHRA (www.mhra.gov.uk).
The Nutrition and Health Claims Regulation provides for the possibility that, in future, claims for foods could be assessed according to their nutritional composition. But the EC has yet to establish a nutrient profiling system to support such requirements.
The situation in relation to advertising 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.
See ‘Food: General’, ‘Probiotics’, ‘Cholesterol Claims’, ‘Omega 3 Claims’, ‘Tea: Flavanoids’ and ‘Antioxidants’.
Last modified : 23 September 2011