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.
Under (EC) Regulation No 1924/2006 on Nutrition and Health Claims Made on Foods, 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, including 'source of omega-3 fatty acids' and 'high in omega-3 fatty acids', 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 FSA's Guidance on the Regulation can be accessed here: http://www.food.gov.uk/multimedia/pdfs/ec19242006complianceguide.pdf).
EFSA are still reviewing the proposed claims submitted. Progress on the claims can be found at www.efsa.europa.eu.
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 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 require that substantiation to be provided for these claims. Therefore, until the Register is finalised, established claims that supplementation with Omega 3 fatty acids can help maintain a healthy heart or healthy joints are unlikely to breach the Code. Claims that Omega 3 can affect or improve mental performance have not been proven to the satisfaction of either the ASA or CAP, despite the submission of large dossiers of evidence. No advertiser has been able to give the ASA robust, relevant or product-specific evidence for claims that its Omega 3 supplement will affect a healthy person’s concentration or mental development.
For example, the ASA considered that a supplement manufacturer’s evidence was inadequate to support claims that the product could “help maintain concentration levels and healthy brain development” because it related to unrepresentative sections of the population, included too few subjects and did not match up in terms of the strength and level of Omega 3 used in the trials and in the product. (Potters Ltd, 12 December 2007). Similarly, an ad that claimed Dairy Crest St Ivel Advanced Milk could “enhance a child’s concentration and ability” fell foul of the Code: the ASA judged the submitted studies used Omega 3 in significantly different concentrations from the St Ivel Advanced formula and other trial data from children with developmental co-ordination disorder could not be extrapolated to all children (Dairy Crest Ltd, 21 June 2006). Also, marketers should remember that offering treatments for a serious medical condition is not permissible in ads for food supplements and should be aware that the ASA has judged references to trials on children suffering from ADHD to be indirect claims of treatment for symptoms of that condition (Potters Ltd, 15 October 2008).
On the basis of evidence seen by the ASA and CAP, and based on the Code’s prohibitions, CAP advises marketers to avoid making claims about mental performance, whether for the general population or for children with ADHD.
In September 2009 the ASA upheld complaints made in relation to ads for ‘Omega 7’ which was stated to contain the fatty acids, 3, 6, 7 and 9 and claimed that it could improve menopausal symptoms such as vaginal dryness on the basis that the marketer had not provided sufficient substantiation.
The Regulation provides for the possibility that, in future, claims for foods could also be assessed according to the food’s nutritional composition. But the EC has yet to establish a nutrient profiling system to support such requirements.
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” and “healthy” must be accompanied by an authorised health claim. However, because 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.
Last modified : 23 September 2011