Please note that some examples in this advice document refer to cases which were investigated by the Advertising Standards Authority (ASA) prior to Brexit and the transition period. Although these cases refer to the EU Register rather than the GB (NHC) Register, the precedents established by those cases still apply.
- Background and Brexit
This advice is primarily aimed at marketers planning to advertise in Great Britain. If ad campaigns are due to appear in Northern Ireland (in isolation or in combination with a campaign in Great Britain), Committee of Advertising Practice (CAP) recommends that marketers obtain legal advice due to the complexities of the Northern Ireland Protocol (NIP) and its impact on the Regulation.
Following the UK’s exit from the EU (Brexit), Regulation (EC) 1924/2006, was brought into UK law by the European (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020.
Prior to Brexit, according to Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), only health and claims listed as authorised on the EU Register of nutrition and health claims (the EU Register) could be made in ads promoting foods. Nutrition claims were only permitted if they appeared on the Nutrition Claims Annexe.
From 1 January 2021, only health and nutrition claims authorised on the Great Britain nutrition and health claims register (the GB NHC Register) are permitted. The rules set out in the Regulations are reflected in Section 15 of the CAP Code.
The situation in relation to making health claims for foods in marketing communications is complex and continues to develop. Because the Copy Advice team does not give legal advice, we cannot comment on transitional periods and/or the status of the legal framework which underpins Section 15. This article sets out general guidance about how the ASA is likely to be applying the advertising Codes only.
Please see this Department of Health and Social Care (DHSC) Guidance for detailed advice on compliance with Regulation (EC) 1924/2006
- What is a general health claim?
A general health claim is a reference to a general benefit of a nutrient or food for overall good health or health-related well-being.
General health claims can refer to an effect which is generally beneficial, for example “healthy” or “good for you”. Alternatively they might refer to a broadly beneficial effect on a specific aspect of health or the body, for example “[Flora cuisine looks] after your little ticker” (Unilever UK Ltd, 8 August 2012). Please see below for more examples of general health claims.
ASA rulings show that general health claims can be explicit or implied by a combination of factors within a particular context. Please see the examples relating to context below for further information.
- What is required to make a general health claim?
General health claims may only be made if they are accompanied by an appropriate specific authorised health claim from the GB NHC Register.
This means that products which do not meet the conditions of use to make any of the specific health claims on the GB (NHC) Register, will not be able to make a general health claim. Please see “Food: Health claims” for detailed guidance regarding specific authorised health claims.
- What is sufficient to “accompany” the general health claim?
The ASA has ruled that accompanying specific health claims should appear next to or immediately following the general health claim.
Marketers creating videos for non-broadcast media (such as VOD or online) should note that the ASA has ruled that showing a specific authorised claim before the general claim in a TV commercial did not meet the requirement to accompany the general claim although the specific claim chosen had been appropriate (Kellogg Marketing and Sales Company (UK) Ltd t/a Kelloggs, 20 July 2016).
On a website the specific health claim should be on the same page as the general health claim. The ASA has previously ruled that a website which had the specific health claim two clicks away from the page containing the general health claim breached rule 15.2 and we expect the same outcome for a specific health claim which was one click away.
Where the specific health claim needs to be placed in relation to the general claim will depend on the positioning of the general health claim and the layout of the webpage as a whole.
Care needs to be taken that the specific claims necessary to make a general claim are not overshadowed by other aspects of an ad. For example, a TV ad which included specific health claims at the foot of the screen but gave greater emphasis to (non-permitted) comparative nutrition claims by referencing them in the voice-over and images, thereby suggesting the general claim was supported by nutrition claims, was ruled to breach the Code (Pharmacare (Europe) Ltd t/a Bioglan, 11 June 2014).
- What is an appropriate relevant specific health claim?
Specific authorised health claims used to accompany a reference to a general, non-specific health benefit should be of relevance to the general claim.
For example, the ASA ruled that the (acceptably flexed) specific health claim “with iron to help reduce tiredness and fatigue” was appropriate to accompany “tired of being tired” which it considered would be interpreted as “good for tiredness” and therefore was a general health claim (Salus UK Ltd, 5 March 2014).
- Examples of general health claims
“Superfood”, “superfoods”, “super fruit”
“Full of goodness”, “[ingredient] goodness”
(Halo Foods Ltd, 31 December 2014; Kellogg Marketing and Sales Company (UK) Ltd t/a Kelloggs, 20 July 2016)
The ASA has not yet specifically ruled in relation to the claim “wholesome”, however we would expect that it would be considered a general health claim.
We would expect that making a reference to “well-being” in an ad for a food product without implicitly creating a link to health is likely to be challenging and would recommend that marketers seek Copy Advice.
- Examples of where the context has had an impact on interpretation
In some circumstances the nature of the product on a website linking to health overall might be enough to create an implicit link.
For example, the ASA ruled that in the context of a website titled “PH Health” and which sold health related products, it considered claims for MMS2 which included “numerous benefits” and “many other purported benefits” would be understood as general health claims (PH Health, 4 March 2015).
In other circumstances a claim might be ambiguous in isolation but in context may cause it to imply a general health claim or, equally, make clear that it is not. The following examples explain the principle in more detail.
“tailored to support your baby’s nutritional needs”
In the context of a food specifically for babies, the ASA previously considered the claim “to develop our unique formulas, tailored to support your baby’s nutritional needs at every stage of development”. It considered that consumers would understand the claim to be making a positive, albeit very general, claim that the formula would help babies to take in all of the nutrients they needed to develop properly. The reference to babies’ “development” was likely to be seen as synonymous with their overall health rather than, for example, a factual statement about the presence or absence of ingredients.
On that basis, “tailored to support your baby’s nutritional needs” was ruled to be a reference to general, non-specific health benefits of the food and be a general health claim for the purposes of the CAP Code (Nutricia and Tesco Stores Ltd,30 July 2014).
In the context of appearing on the home page of a cereal brand website and in the absence of further information to help consumers understand the context of the claim, the ASA considered that consumers were likely to interpret this claim as one which implied the cereal was “nutritious” because of its nutritional content and was, therefore, “good for you”. They therefore considered “nutritious” to be a general health claim rather than a term highlighting the product’s nutritional credentials (Kellogg Marketing and Sales Company (UK) Ltd, 20 July 2016).
“For a great start to the day!”
In 2015, the ASA considered this claim was in itself ambiguous and might, for example, be interpreted as referring to the enjoyment of the product. However, in the context of the ad, it considered that “for a great start to the day” suggested the product had a general benefit to health, in particular given the text “Nutri-Start”, the references to the nutritional content of the product (“Vit D”, “Zinc” and “Iron”) and also “complementing milk” (Nestlé UK Ltd, 23 December 2015).
“A proper breakfast”
An ad which showed someone getting ready to go to work and highlighting the need to save time was ruled unlikely to suggest the product was beneficial for overall good health or health related well-being. Instead, in this context it was presented as an alternative for someone who did not have time to eat breakfast at home. Therefore neither the ad as a whole or the reference to “a proper breakfast” was considered to make general health claims (Weetabix Ltd, 30 September 2015).
In the context of a Twitter page for a company called Fuel Station which sold ready prepared meals, the ASA considered that the claim “#EatFitBeFit” would be understood by consumers to mean that the meals would help people become “fit” and therefore that they would be beneficial to their health. This claim was therefore considered to be a reference to a general benefit of the food for overall good health or health related well-being (Fuel Station Ltd, 25 May 2016).
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 ASA. CAP’s Advice Online entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.
If you want a refresher on how to ensure your ads are compliant, please get in contact with us.
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