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.
Government guidelines recommend consumers to eat five portions of fruit or vegetables a day ('5 A DAY'). Information on what constitutes a portion can be found on the Department of Health (DoH) website (www.dh.gov.uk). Marketers who claim their products can contribute one portion within a “healthy”, balanced diet, when consumed in moderation, are unlikely to breach the Code provided they follow those guidelines. Marketers of foods high in fat, salt or sugar (HFSS) who claim their product constitutes one portion of the recommended five are likely to imply the product is “healthy”. They should ensure that the quantities of fat, salt or sugar in their product can be accommodated within recommended daily dietary and nutritional needs and that they emphasise that the product should be consumed within a varied and balanced diet (See ‘Food: “Healthy” Claims’). Even if their product does count as a portion, marketers should not imply processed foods are as “healthy” as, or direct replacements for, unprocessed fruit or vegetables if they are not (Unilever Bestfoods UK Ltd, 9 July 2003, and HJ Heinz Co, 23 April 2003).
Marketers wanting to use claims that exceed a one-in-five-a-day platform, for example those that processed or composite foods or drinks can count towards two or more portions should, once again, refer to government guidelines and take special care not to exaggerate the contribution the product can make to a healthy, balanced diet. The ASA has upheld complaints about ads for soups and fruit drinks because advertisers have over-claimed the number of portions those products contribute towards 5 A DAY(Innocent Ltd, 3 October 2007; Unilever Bestfoods UK Ltd, 9 July 2003, and HJ Heinz Co, 23 April 2003). In one instance, an advertiser tried to claim the presence of two (composite) portions of fruit in a drink on the basis that the product contained 1.3 portions of real fruit pieces and 0.7 of a portion of fruit juice. After taking expert advice, the ASA concluded that the crushed fruit and purees should be classed as juice, not fruit, and the advertiser could therefore claim to contribute only one portion of fruit. But the ASA noted that the Department of Health guidelines on intact fruit and part portions were open to interpretation and based its decision on the DH’s ruling that that specific product could not claim to offer more than one portion of fruit. (Hero UK LLP, 18 October 2006).
In 2008, the ASA investigated an ad that stated
" ... made from crushed whole fruit. Not just the liquidy bit (also known as juice) but the whole darned shooting match. So you get all of the flesh, fibre, vitamins, antioxidants and other good bits ...", The complaint was that the product did not contain the whole fruit and that some nutrients were lost in the production process. The ASA again sought expert advice and, because the processing of the whole crushed fruit in the product retained all the edible parts of the fruit, concluded that the claim was unlikely to mislead (Innocent Ltd, 2 April 2008).
Smoothies now count as more than one portion towards 5 A DAY provided they contain pure 100% fruit juice and all of the edible pulped fruit and/or vegetable (for example 150ml of pure 100% fruit/vegetable juice and 80g of the crushed fruit/vegetable pulp). However, individual portions of smoothies may only claim up to a maximum of 2 portions of fruit and vegetables.
For more information on government guidelines for making a 5 A DAY claim or use of the 5 A DAY logo, visit the Department of Health Website (www.dh.gov.uk), which explains the criteria for claiming that a product contains a portion of fruit or vegetables.
Please note that w here a smoothie has other added ingredients, including yogurt it would be considered a composite food and therefore will not comply with the guidelines for featuring the 5 A DAY logo.
Marketers should avoid implying government recommendations similar to the 5 A DAY initiative. Nestle was reprimanded for a television ad that claimed its breakfast cereals could help you “on your way to 3-a-day” for wholegrain consumption. Because no official government recommendation similar to that for fruit or vegetables exists for the consumption of wholegrain, the claim was deemed to mislead (Cereal Partners UK, 11 June 2008).
Marketers should be aware that the Regulation on Nutrition and Health Claims Made on Foods applies to claims such as “low in fat (or salt or sugar)”, and variations on them, because those claims are 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)
Last modified : 01 September 2010