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 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.
General claims that products high in fat, salt or sugar are “healthy” or a “healthier” choice solely because one of those three ingredients has been reduced might breach the CAP Code, even if the reduction claims are technically accurate.
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” or “healthy” must be accompanied by an authorised health claim. However, as the Community Register of authorised health claims is not yet complete the ASA is likely to investigate under Section 3 (Misleading advertising) for the time being.
In 2004, the ASA upheld complaints against Finalrealm Ltd’s advertisements for reduced-fat Go Ahead cereal bars and cakes. The ads featured images of a yoga class and claimed that the products were low in fat with the text "so, whenever you feel like it, feel free", "the healthier choice", "using healthier ingredients" and "you can have yours and eat it anytime you like”, which the ASA considered implied the products were healthy snacks. Because the bars and cakes had lower fat but contained a sugar content comparable to other, similar, snack products, the ASA concluded that the advertiser had not shown that the products were “healthier” and had misleadingly implied they were healthy (Finalrealm Ltd, 2 March 2005).
If they are legally entitled to make it, marcoms making a “low fat” claim for a product that contains a large amount of salt or sugar might be acceptable if they include accurate information, do not imply wider benefits and make clear the relative merits of the product. In 2004, the ASA considered an advertisement, for Fox’s biscuits, that claimed “Before you chose a low fat biscuit, fill up on the facts. According to the Food Standards Agency, only food that contains less than 3% fat (or less than 3g per 100g) can officially call itself low fat”, “What’s more because they’re officially low fat you can enjoy them without upsetting your low fat diet”, “Officially Low in Fat from Fox’s. High in taste, low in fat. Fact”. The ad featured a table that compared the fat and calorie content of Fox’s biscuits with that of their competitors but did not mention the products’ higher sugar content. The ASA concluded that the ad did not imply that the biscuits were healthier than they were and did not mislead consumers by omission because, although it did not state the sugar content, it stated the total calorific value of the compared products (Fox’s Biscuits, 1 December 2004) and was obviously targeted at those wanting specifically to follow a low-fat diet.
The ASA has investigated complaints about ads that have compared the content of different foodstuffs to illustrate reduced or low amounts of micronutrients such as salt. Marketers should balance the desire to promote one or more elements of a product without creating a misleading impression of the product as a whole. In August 2006, the ASA did not uphold complaints against a poster that compared the salt content of Walkers Crisps with that of white bread. The advertisement, which stated “There’s as little salt in here … as there is in here”, received several complaints including one that asserted the ad was misleading because both crisps and white bread were high-salt products. The ASA ruled that, if consumed responsibly, most foods could form part of a balanced diet and that, although the salt content of Walkers Crisps and white bread would be rated as high according to guidelines provided by the Food Standards Agency, the amount in a standard-size or multipack bag of crisps would not be difficult for adults and most children to integrate into a healthy diet (Pepsico International t/a Walkers Snack Foods Ltd, 16 August 2006).
Conversely, the ASA upheld objections about a direct mailing, from the same Walkers campaign, that featured a general reduced-salt claim for Walkers Crisps, because the salt reduction did not apply to all Walkers crisps.
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.
The ASA’s approach to “low” and “reduced” fat, salt and sugar claims is likely to be guided by the Regulation. It has already upheld complaints against claims that were likely to be understood by consumers as “low fat” and “low energy” on the basis that they were misleading because they did not meet the criteria set out in the Annex. Mars’s claim that Maltesers contained “less than 11 calories” was considered a misleading “low energy” claim because the product could not legally be claimed to be low in calories; Jaffa Cakes could not make the “low fat” claim “Each delicious Jaffa Cake really does have only one gram of fat” and Young’s Seafood’s claim “less than 5% saturated fat” was deemed misleading because it wrongly implied that Young’s fish fillets were a low-saturated-fat product (Mars UK Ltd t/a Mars Snackfood; United Biscuits (UK) Ltd t/a McVities, 15 October 2008; Young’s Seafood Ltd, 1 October 2008).
It is worth noting that the Walkers adjudication would have to be different now that the new regulatory regime for nutrition claims is in force, given that the Regulation is not concerned with the accommodation of products into a balanced diet and merely sets out strict criteria for “low” salt, sugar or fat claims based on scores per 100g.
Last modified : 01 September 2010