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.
EC Regulation No 1924/2006 On Nutrition and Health Claims Made on Foods (the ‘Regulation’) came into effect in the UK on 1 July 2007 and applies to all health and nutrition claims made in commercial communications, whether in the labelling, presentation or advertising of foods. It also applies to trade marks and other brand names that could be construed as nutrition or health claims. The Department of Health has produced guidance in relation to the application of the Regulation as a whole see http://www.dh.gov.uk/health/2011/11/health-claim/ for further information.
Section 15 of the CAP Code sets out the rules which specifically relate to marketing communications concerning food. Section 15 reflects the existing principles of the CAP Code as well as the requirements of the Regulation. Marcoms must still comply with the general rules in the CAP Code, for example rule 3.1 which states “Marketing communications must not materially mislead or be likely to do so”.
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.
Nutrition claims
A nutrition claim is one that refers to a nutritional benefit of a food, for example “low salt, high fibre”. Any claim that states or implies that a food has particular beneficial nutritional properties because of its ingredients must comply with the criteria for use set down in the Annex. The Annex to the Regulation can be found here:
http://ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Nutrition claims may differ in wording to those set out in the Annex but will still need to meet the relevant criteria.
Health claims
Health claims are those that refer to a relationship between a food or ingredient and health, for example “Omega 3 could help to keep your heart healthy”. The European Union Register of Authorised health claims now exists, however it is not yet complete. The European Union Register can be viewed here:
http://ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm
Once the Register is complete, the only health claims which will be acceptable will be those on the Register. Until then the ASA will continue to investigate advertising claims that are not listed on the Register (and have not been specifically rejected) and will require advertisers to provide substantiation to support them.
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:
http://ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm
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).
Rule 15.2 of the Code reflects the requirement under the Regulation that health claims referring to general non-specific health benefits of the nutrient/food for overall good health e.g. “good for you”, “healthy” must be accompanied by an authorised health claim. However, as the European Union Register of authorised health claims is not yet complete the ASA is likely to investigate under Section 3 (Misleading advertising) for the time being. Rule 3.7 stipulates that marketers must be able to support their claims with documentary evidence.
Marketers should not, therefore, claim that their products are “healthier” than they are. Marketers should consider factors such as the role of diet and nutritional needs, especially in ads that highlight beneficial micronutrients in products that are high in salt, sugar or saturated fat.
The BCAP Code now also includes a specific section on food which includes the changes made to regulation of television advertising of food and drink products to children. This includes include tighter restrictions on the use of promotional offers, celebrities and licensed characters. Those content restrictions, produced by BCAP, go hand in hand with Ofcom’s restrictions for the scheduling of HFSS food and drink advertising when children are especially likely to be watching. In this context HFSS are identified by reference to the FSA nutrient profiling model. Together, the new rules provide a targeted and proportionate response in accordance with the Government’s objectives for strengthening the BCAP TV Code for television advertising in relation to food and drink advertising to children. (For more information, see www.ofcom.org.uk.).
The CAP Code does not use the Nutrient Profiling model on which HFSS classifications are based for TV. Instead, the CAP Code rules in relation to Food and Soft Drink Product Marketing communications and children place restrictions on ads for all food and drinks with the exception of fresh fruit and fresh vegetables. (See ‘Food: Children’).
The Regulation provides for the possibility that, in future, claims for foods may be assessed according to the foods’ nutritional composition but the EC has yet to establish a nutrient profiling system to support such requirements.
(See ’Food: 5-a-day’, ‘Food: Healthy Claims’, ‘Food: Health and Reduced Fat, Salt Sugar’, ‘Food: Omission and Nothing Added Type Claims’ and ‘Health Claims and Soft Drinks’.)
Last modified : 29 March 2012