Who: Advertising Standards Authority (ASA)
When: February and March 2017
Law stated as at: 27 April 2017
As we reported back in January, the growth in the healthy lifestyle industry has resulted in the ASA and CAP raising awareness in 2017 of the use of health and nutrition claims in the food sector.
Alongside CAP issuing updated guidance for the industry, there have also been a number of recent investigations in the past few months by the ASA into such claims that serve as a useful reminder of the regulatory stance in this area:
Comparative nutrition claims Upheld complaint against The Atlantic Kelp Company Ltd
This was a complaint brought by Derbyshire County Council’s Trading Standards Service against The Atlantic Kelp Company, who used the nutritional comparative claim “kelp contains more iron than steak” alongside other health claims. As with general nutrition claims, comparative nutrition claims should only be made if they are one of those appearing in the Annex to Regulation (EC) No 1924/2006. However, the CAP Code also contains specific provisions relating to such comparative claims. As was covered in the recent CAP guidance on weight loss claims, comparative claims should be made using products from the same category and in the same quantity.
The CAP Code also requires such claims to “compare the difference in the claimed nutrient to a range of foods of the same category which do not have a composition which allows them to bear a nutrition claim” (Rule 15.3). As the product was being sold as food seasoning but yet was being compared to steak, it clearly was not in the same food category.
In terms of the authorised nutrition claim relied on, the Annex does not allow increased nutrition claims where: (i) the nutrients compared are vitamins or minerals; (ii) the product had not met the conditions of use for a “source of” nutrition claim; or (iii) the increase in the nutrient’s content was under 30% compared to a similar product. Here, the advertiser had no evidence to support points (ii) and (iii) and, as iron is a mineral, this comparison also fell afoul of point (i). As such, the claim was not being made in accordance with the Annex and the complaint was upheld.
Unauthorised health claims Upheld complaint against The Juice Garden Ltd
As explained above, health claims should be of an authorised type and appear on the EU Register and general health claims should not be made unless they are accompanied by a specific authorised health claim. In this case, the ASA upheld a complaint against use of the claims “Cleanse”, “Immune”, “Energy”, “Detox Juice”, (all general health claims) “Colon Cleanser” and “Drink Me, Shrink Me” – which were either not authorised health claims or were general health claims that were not accompanied by a specific authorised health claim.
Another claim being investigated by this same ruling was the use of “flu shot” as a name of a drink. The ASA agreed with the complainant and felt that the claim would be understood by consumers to mean that the product could help to prevent or treat flu infection. The CAP Code specifically prohibits claims that state or imply a food prevents, treats or cures human disease (Rule 15.6.2) and, as such, the complaint was upheld on this point.
Conditions of use for a health claim
The Hut.com Ltd trading as myprotein.com
A complaint was received against a claim for l-glutamine powder (a supplement for sports performance) which stated “Supplementing with L-Glutamine (particularly post-workout) can help to restore amino acid levels that are diminished during your workout. Restoring these will provide a fundamental building block for new proteins to be manufactured to help with recovery”.
Again, this implied a relationship between health and the food product or ingredient. Whilst the ASA noted that this was not an authorised claim appearing on the EU Register, it also used this opportunity to stress that consumers would understand this claim as relating to the beneficial effects of the product, particularly concerning recovery after exercise. It is important to remember that, as well as ensuring you are using an authorised health claim, advertisers must be able to provide evidence to demonstrate that the claims also meet the conditions of use associated with the relevant authorised claim. This also applies to nutrition claims too.
Why this matters:
All three of the adjudications above show the typical hurdles that advertisers face when wanting to making health and nutrition claims for their products. Whilst none of these rulings shows a change in approach by the ASA, they do show a step up in terms of investigations in this area. This, in conjunction with the recent guidance issued by CAP, should be carefully noted by advertisers in this industry.