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.
Marketers should avoid making absolute statements that foods have “nothing added” or contain no added ingredients if they include either additives, artificial preservatives or both (Danone UK, 7 January 2005). Stating that ingredients are “simple” in conjunction with a contrasting list of complex artificial ingredients has been deemed a “no artificial ingredients” claim and is likely to mislead (Nestle UK Ltd, 12 July 2006).
The ASA investigated complaints about a McDonalds ad that had claimed “The story of our fries. (End of Story) … First we take the potatoes … We peel them, slice them, fry them and that’s it.” The ASA upheld several related complaints because readers were likely to infer that was the complete chip-making process whereas the advertiser had omitted material parts of the process, including the addition of various ingredients (McDonalds Restaurants, 26 November 2003). Similarly, the ASA decided that an ad for This Water was misleading, because it implied that the product contained nothing but water and fruit (by depicting a bottle with two arrows pointing at it attached to text stating “fruit from the trees” and “water from a spring”). In fact, each bottle contained a considerable amount of added sugar that did not occur naturally in the fruit (This Water Ltd, 15 October 2008).
Marketers are advised that basic foodstuff definitions in the Food Labeling Regulations do not necessarily justify the use of “ingredient-free” type claims. In 2002, the ASA upheld complaints about Kerrygold’s claim that “100% Pure Spreadable Butter” had “Nothing added” because the product contained 2% salt; that was despite the Food Labeling Regulations’ definition of “pure” butter allowing for up to 2% salt content (The Kerrygold Co Ltd, 23 June 2004).
Although marketers are advised to include responsible nutritional information to help consumers make an informed choice, ads should not claim or imply they offer all the nutritional information for a product if a key ingredient or relevant nutritional information has been omitted. In 2004, the ASA upheld complaints against a Co-op advertisement that claimed “Our Packaging tells you the whole truth” on the basis that it did not mention which products contained trans fatty acids (hydrogenated fat). Although marketers are under no legal responsibility to state trans fatty acid (TFA) content in food labeling, the ASA considered that, because TFAs contain no known nutritional benefits and raise blood cholesterol, the inclusion of TFA content was nutritionally relevant information. Because it was not included on the advertiser’s packs, the claim “the whole truth” was considered misleading (Co-operative Group, 9 February 2005,).
Marketers should ensure that ads that focus on the health aspects of their products do not mislead by omission. The ASA upheld complaints against Final Realm’s advertisements, for reduced-fat Go Ahead cereal bars and cakes, that focused on the products’ low fat content and claimed they were “the healthier choice” but omitted to state that they had sugar contents comparable to those of other similar snack products (Finalrealm Ltd, 2 March 2005).
The ASA upheld complaints concerning press and poster ads for Nutri-Grain Soft Oaties biscuits which were headlined “Wholesome cookie goodness” and stated “made with oats & wheat, source of fibre, 6 B vitamins & iron. Enjoy as part of a healthy balanced diet & lifestyle”. Although it noted that the statements were factually correct the ASA found that by omitting to mention the fact that the Soft Oaties were high in sugar, fat and saturated fat the ads could imply the snack was wholly beneficial to health or that the Soft Oaties were healthier than they were (Kellogg Marketing and Sales Company (UK) Ltd 4 February 2009)
Ads for the Vitaminwater range also had complaints upheld in 2009, because they implied a product with high levels of sugar was healthy, the ASA noted factors such as the appearance of the products which made it clear that the product was not ‘pure’ water without calories or sugar, but because the ads made claims that were likely to be understood as referring to the nutritional and health benefits of the drinks, (for example “keep perky when you're feeling murky” and “more muscles”) it was likely that, in conjunction with these claims, readers would infer that the range of drinks were ‘healthy’. In fact the drinks contained a significant proportion of a consumer’s RDA for sugar, so the ASA concluded that the ads were likely to mislead. (Coca-Cola Great Britain t/a Beverage Services Ltd 7 October 2009).
In 2005, a complainant believed that the claim “Cheerios are made from 4 healthy whole grains – corn, oats, rice and wheat” would mislead readers because the cereal contained salt, sugar and other additives (Cereal Partners UK t/a Nestle UK Ltd, 21 September 2005). The ASA accepted that readers were likely to understand that breakfast cereals such as Cheerios contained other ingredients such as sugar and salt and were unlikely to infer that the product consisted exclusively of corn, oats, rice and wheat.
Equally, an advertisement for Rice Krispies claiming that every one “starts off as a grain of rice” but that later “snap crackle and pop” were added was not considered a “nothing added” claim by the ASA, because it implied that Rice Krispies contained ingredients other than rice. (Kellogg Company of GB Ltd, 1 November 2006).
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 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.
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, 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.
Last modified : 01 September 2010