BCAP has recently consulted on changes to the TV and Radio Ad Codes to ensure they don’t allow food claims that would breach EU regulation 1924/2006/EC on nutrition and health claims on foods. Changes to the non broadcast Code have already been implemented. Anna Montes investigates.
Who: Committee of Advertising Practice
When: 19 January 2009
Where: United Kingdom
Law stated as at: 24 February 2009
Following changes to the British Code of Advertising, Sales Promotions and Direct Marketing (the "CAP Code") and the BCAP Codes applicable to broadcast advertising driven by the Consumer Protection from Unfair Commercial Practices Regulations 2008, more revisions now address health and nutritional claims.
The provisions of the (EC) Nutrition and Health Claims Regulation 1924/2006 (the "NHC Regulation") are behind the most recent round of amendments to the codes. The NHC Regulation was introduced on 1 July 2007 and placed controls on the use of nutrition and health claims in the advertising, labelling and presentation of all foods, drinks and food supplements. It aims to protect consumers from misleading or false claims made in relation to nutritional benefits and applies to both food ready for consumption in accordance with the manufacturer’s instructions and general claims made in a commercial context, including those made in advertising.
The introduction of the NHC Regulation has meant that CAP and BCAP have conducted reviews of the CAP Code and the BCAP Code to ensure there is consistency with the NHC Regulation where nutritional and health claims are concerned. Advertisers and their agencies need to note the amendments that could be made to these codes and we therefore flag some of the key changes below:
Changes made to the CAP Code
CAP published amendments to the CAP Code on 19 January 2009 to help the advertising industry comply with the NHC Regulation. These revisions came into force immediately as CAP decided that because the revisions were necessary to reflect the position in law, there was no need to consult with the advertising industry as to the changes proposed. By way of a quick summary, some of the amendments made include the following:
1. Rule 50.17 – a new prohibition has been added to this rule which states that health claims relating to food products made in marketing communications must not refer to the recommendation of an individual health professional.
2. Rule 50.21 – has been amended to provide that:
(a) marketers must not state or imply that a balanced or varied diet cannot by itself provide enough nutrients and marketers should not encourage anyone to swap a healthy diet for supplements;
(b) marketing communications must not imply vitamin or mineral supplements can be used to prevent or treat illness although they may be offered to certain groups as an aid to help maintain good health;
(c) unless a claim is authorised by the European Commission in advance, a marketer must not imply that supplements can be used to "elevate mood" or "enhance normal performance" in any way;
(d) claims about higher vitamin or mineral intake for a specific function are only permitted going forward if authorised by the European Commission; and
(e) without "well-established proof", no marketing communication should suggest that there is a widespread vitamin or mineral deficiency.
3. Rule 50.22 – has been amended to provide that if a claim is made for a vitamin or mineral supplement which is only relevant to a certain group of consumers that is at risk of inadequate intake, marketing communications must clearly state the group that is likely to benefit from the supplement referred to.
4. Rule 51.10 – has also been amended and now provides that claims for products that refer to a rate or amount of weight loss are not permitted. Claims that individuals have lost an exact amount of weight should still be compatible with good medical and nutritional practice, state the period involved and not be based in unrepresentative experiences.
5. Rule 56.10 – now states that marketers cannot make health claims which include fitness or weight control claims with the express exception of claims relating to "low alcohol", "reduced alcohol" and "reduced energy".
Changes made to the BCAP Code
On 19 January 2009, BCAP took a different approach to CAP as it decided to publish a consultation on proposed minimum changes to the BCAP Code aimed at ensuring the code does not permit practices that are explicitly prohibited by the NHC Regulation. BCAP considered the BCAP Code to already be generally consistent with the NHC Regulation and that therefore its consultation should be an interim measure only, particularly seeing as BCAP intends to carry out a general review of the BCAP Code in the near future. This review of the BCAP Code will take into account the decisions reached as a result of this particular consultation process together with a set of new rules aimed at helping broadcasters to comply with the NHC Regulation more generally, and more.
In the meantime, BCAP is simply proposing some minimum amendments it deems are necessary to ensure that the present version of the BCAP Code does not: (a) allow practices that are explicitly prohibited by the NHC Regulation; or (b) unduly restrict the use of those nutrition and health claims that are permitted by the NHC Regulation. The proposals that are the focus of the consultation exercise seek to assess:
1. whether claims about rate or amount of weight loss will be allowed;
2. whether the blanket prohibition on nutrition or health claims used in food or soft drink advertisements targeted directly at pre-school or primary children will be lifted;
3. appropriate changes to the examples of nutrition claims referred to in the BCAP Code;
4. the changes to the rules for dietary supplements claims; and
5. proposed amendments to the rules on what nutritional claims can be made in alcohol advertisements.
Why this matters:
The BCAP consultation came to end on 16 February 2009 so we await the outcome of the that exercise and the effect it could have on BCAP's larger review of the BCAP Code to be conducted in the near future. CAP is also interested in the outcome of BCAP's consultation exercise as although it did not consult itself, it has indicated that when the anticipated, comprehensive review of the CAP Code takes place, it will take into account any changes that BCAP makes to the BCAP Code as a result of this recent consultation exercise.
As BCAP and CAP have sought to make only minimum changes necessary to the codes to ensure consistency with the NHC Regulation as an interim measure, it is acknowledged that the updated codes will not explicitly reflect some of the more general or specific provisions of the NHC Regulation relevant to broadcast and non-broadcast advertisements. BCAP and CAP therefore encourage those in the advertising industry who make health and nutritional claims to take legal advice on the general provisions of the NHC Regulation in more detail and to note the "Guidance to Compliance with Regulation (EC) 1924/2006 on Nutrition and Health Claims on Foods" created by the Food Standards Agency. Advertisers need to ensure that they are on top of the laws and regulations currently applicable to claims of these types to ensure their advertising is at all times legally compliant.