Who: The Advertising Standards Authority (ASA) and Not Guilty Food Co Ltd t/a The Skinny Food Company
Where: United Kingdom
When: 14 April 2021
Law stated as at: 13 May 2021
In June 2020, the ASA ruled that an ad by Not Guilty Food Co Ltd (trading as The Skinny Food Company) breached the CAP Code. The ad was posted to Facebook and depicted its spice mix product ranges with an accompanying caption stating “Have you checked out our new Skinny Spices?“, amongst other claims.
The claim “Skinny Spices” was challenged by two complainants, who questioned whether the claims were subject to Regulation (EC) No.1924/2006 on food nutrition and health claims and, therefore, breached the CAP Code.
The ASA ultimately held that these claims were subject to the regulation and that although there were several possible interpretations of the claim, each one still breached the CAP Code. The ASA also sought guidance from the Food Standards and Information Focus Group (FSIFG) in their response. The various interpretations are considered below.
“Skinny Spices” was an unauthorised health claim
Only health claims (that is, those that stated, suggested or implied a relationship between a food or ingredient and health) listed as authorised on the EU Register of nutrition and health claims are permitted to be used in advertising. Advertisers must show that health claims used in relation to products are authorised on the EU Register in respect of the particular ingredient they contain. The food standards group considered that “Skinny Spices” was a health claim because consumers would interpret “Skinny” in the brand name “Skinny Spices” to mean that the product would assist with weight maintenance or loss over and above a regular version of the product. However, it was noted that the “Skinny Spices” did not confer a health benefit over and above the regular versions of the product and, as there are no authorised health claims associated with this range or product (including the ingredients used in these products), it constituted a breach of the CAP Code.
“Skinny Spices” was a general health claim which was not accompanied by an authorised health claim
Further, the FSIFG also considered the impact of “Skinny Spice” being considered as a general health claim. General health claims must be accompanied by a specific, authorised health claim. The group concluded that – if interpreted as a general health claim – it would need to be accompanied by a specific, relevant health claim also relating to weight loss or maintenance. However, as the products did not meet the conditions that allowed them to make an authorised health claim in relation to weight loss, there was no authorised or appropriate specific health claim that could accompany the general health claim.
The ruling also considered the point that the regulation generally allows a trade mark that may be construed as a health or nutrition claim may be used in advertising, provided that it is accompanied by an authorised health or nutrition claim. However, the trade mark Skinny Spices was not accompanied in the advertisement by any authorised health claims relating to weight loss or maintenance, and, therefore, it was deemed in breach of the Code.
“Skinny Spices” as a nutrition claim?
The FSIFG also briefly considered whether “Skinny Spices” could be interpreted as a nutrition claim. Only nutrition claims (that is, claims that stated, suggested or implied that a food had particular beneficial nutritional properties) listed in the annex of the regulation are permitted in advertisements promoting foods and they must also meet the conditions in respect of those claims.
The ASA noted that even if “Skinny” were interpreted as a nutrition claim, it would still be a non-permitted nutrition claim because this product would only provide a negligible nutritional benefit in comparison to the regular version of the product. This was due to the amount of spices used and because the nutritional benefits of such ingredients were unlikely to be material.
Why this matters:
This ruling shows that the ASA will not hesitate to consider multiple interpretations of a claim. The ASA found that the products failed to fulfil the criteria for the claims at hand, and therefore, the company was in breach of the CAP Code. The ruling demonstrates the complexity of food advertising law and serves as a warning to companies wishing to make health and nutrition claims that care should be taken when choosing words or phrases as brand names or product descriptions.