“Health” claims are those which refer to a relationship between a food or ingredient and health. The rules on health claims apply to claims which suggest or imply a relationship between food and health, not just explicit claims. Health claims may only be made if they are listed as authorised on the EU Register.
It’s no secret that the authorised wording of some authorised claims doesn’t always make for great advertising copy; it’s important, however, not to confuse dissatisfaction with the wording of a claim with it being difficult for a consumer to understand.
Therefore marketers need to remember that the aim behind any change to the wording of an authorised health claim must be to aid consumer understanding of the claim. This is not the same thing as making the wording more appealing to the consumer.
When considering whether it’s necessary to change the wording of the claim, the first thing to consider is whether the initial wording is potentially unclear to consumers. For example it’s probably going to be more likely that an average consumer who is reasonably well-informed, observant and circumspect, but hasn’t got specialist knowledge in nutrition may not understand a claim such as “…contributes to normal homocysteine metabolism” as opposed to “contributes to the maintenance of normal vision”.
If you can show the claim is difficult to understand then you need to ensure that the amended wording has the same meaning to the consumer. By way of example the Advertising Standards Authority (ASA) ruled that referring to “Omega 3” rather than “Docosahexaenoic acid” was an acceptable change because ‘Omega 3’ was more widely known by consumers and therefore was likely to aid consumer understanding of the claim.
We would expect that the ASA is likely to consider consumer data provided as part of an advertiser’s response to an investigation in circumstances where the wording of an authorised health claim has been changed. However, consumer research will only ever serve as a support to an argument because of the nature of the average consumer test.
If marketers are able to show the necessity to adapt the authorised claim, they would then need to show that the changes they have made do not change the meaning of the claim, exaggerate it or make it stronger. The ASA has consulted the guidance on the General Principles on Flexibility of Wording for Health Claims from the Department of Health which states that: “In general, we recommend that FBOs stick as closely as possible to the authorised wording of health claims”. The ASA will consider the claim as it appears in the ad as a whole so we would strongly advise that the consumer research takes this into account and we would not recommend that consumer data is used to bulk assess claims.
Ultimately claims can change their meaning depending on context.
Source: Committee of Advertising Practice (CAP)
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.
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