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.
Please note that some examples in this advice document refer to cases which were investigated by the ASA prior to Brexit and the transition period. Although these cases refer to the EU Register rather than the GB (NHC) Register, the precedents established by those cases still apply.
Background and Brexit
This advice is primarily aimed at marketers planning to advertise in Great Britain. If ad campaigns are due to appear in Northern Ireland (in isolation or in combination with a campaign in Great Britain), CAP recommends that marketers obtain legal advice due to the complexities of the Northern Ireland Protocol (NIP) and its impact on the Regulation.
Following the UK’s exit from the EU (Brexit), Regulation (EC) 1924/2006, was brought into UK law by the European (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020.
Prior to Brexit, according to Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), only health and claims listed as authorised on the EU Register of nutrition and health claims (the EU Register) could be made in ads promoting foods. Nutrition claims were only permitted if they appeared on the Nutrition Claims Annexe.
From 1 January 2021, only health and nutrition claims authorised on the Great Britain nutrition and health claims register (the GB NHC Register) are permitted. The rules set out in the Regulations are reflected in Section 15 of the CAP Code.
The situation in relation to making health claims for foods in marketing communications is complex and continues to develop. Because the Copy Advice team does not give legal advice, we cannot comment on transitional periods and/or the status of the legal framework which underpins Section 15. This article sets out general guidance about how the ASA is likely to be applying the advertising Codes only.
Please see this Department of Health and Social Care (DHSC) Guidance for detailed advice on compliance with Regulation (EC) 1924/2006
Nutrition claims
A nutrition claim is one that refers to a nutritional benefit of a food, for example “high fibre” or “low sugar”. Rule 15.1.1 states that only Nutrition Claims listed applicable registers or claims that would have the same meaning may be used in marketing communications. Any claim that states or implies that a food has particular beneficial nutritional properties because of its ingredients must comply with the criteria for use set down in the applicable registers.
For practical purposes, the GB NHC Register contains all the information necessary to identify claims that you can use in advertising.
The rules on Nutrition claims are the same in the BCAP and CAP Codes therefore the principles from TV ads can provide useful examples of how the ASA will interpret Nutrition claims in VOD, cinema or online ads.
Marketers must take care when seeking to make a statement regarding the ingredients of a product that they do not make an implied nutrition claim by presentation. In the context of the ad as a whole, in which Father Christmas discussed having put on weight after eating too many mince pies, the claim "107 calories just the ticket", was considered to give the impression that a two-finger Kit Kat was “low in energy” when in fact the product had 510 kcal per 100 g (Nestlé UK Ltd, 16 June 2010).
Similarly, the ASA previously ruled that the claim "only one gram of fat" was likely to suggest that a Jaffa Cake was low in fat and therefore a “low fat” claim. In order to bear a “low fat” claim foods must have no more than 3 g of fat per 100 g whereas Jaffa Cakes contained 8 g of fat per 100 g (United Biscuits (UK) Ltd t/a McVitie's, 15 October 2008).
In 2018 the ASA considered ads for pork medallions which included the claim “low in fat”. The ASA found the claim was listed on the Annex and met the conditions of use laid out in relation to that nutrition claim - which required the marketer demonstrate that the product contained no more than 3g of fat per 100g (Agriculture and Horticulture Development Board, 11 April 2018).
In 2017 the ASA considered a “no added sugar” claim for a multivitamin product. According to the conditions of use associated with the relevant nutrition claim, it could only be made where the product did not contain any added mono- or disaccharides or - any other “food” used for its sweetening properties. In this case the marketer was able to demonstrate that the maltitol and sucralose contained in the product were classified as ‘sweeteners’ by the Food Standards Agency (FSA) and were therefore not considered “foods” (nor “foods used for their sweetening purpose”). As such, the inclusion of these sweeteners was considered to comply with the conditions of a “no added sugar” nutrition claim (Ernest Jackson & Co Ltd, 20 December 2017).
The Department of Health has produced guidance in relation to the wider application of the Regulation which includes information on the interpretation of Nutrition claims and is available here.
Nutrition claims and flexed wording,
Nutrition claims may differ in wording to those set out in the Annex/Register, provided they still have the same meaning for the consumer. However, they will still need to meet the relevant criteria that are also set out in the Annex/Register.
In 2020, the ASA considered the claims “Zero Calorie” and “Virtually Zero® Calorie” for a range of food products - which it considered to have the same meaning as the authorised “energy free” listed in the Annex. The conditions of use of the “energy free” claim required that the products contained no more than 4kcal per 100ml but in this case the marketer had calculated the calorie content on a single serving, rather than a 100ml serving. As such, the calorific value of 100ml of the product exceeded the 4kcal meaning that the conditions of use of the “energy free” claim had not been met (Not Guilty Food Co Ltd, 27 May 2020).
Marketers must take care when seeking to make a statement regarding the ingredients of a product that they do not make an implied nutrition claim by presentation. In the context of the ad as a whole, in which Father Christmas discussed having put on weight after eating too many mince pies, the claim "107 calories just the ticket", was considered to give the impression that a two-finger Kit Kat was “low in energy” when in fact the product had 510 kcal per 100 g (Nestlé UK Ltd, 16 June 2010).
Comparative nutrition claims
Comparative nutrition claims are permitted but the circumstances under which they can be made are restricted, not least because there are only four comparative nutritional claims listed in the GB (NHC) Register. These are "increased [name of the nutrient]", "reduced [name of the nutrient]", "energy reduced" and "light".
Rule 15.3 of the CAP Code sets out the requirements for making a comparative nutrition claim. Regrettably, because it reflects the requirements of the underlying Regulation, this rule is, on first reading, fairly opaque. However, ASA rulings give practical examples of how it applies in practice.
Again, marketers must take care in the presentation of claims to ensure that they do not make comparative claims by accident. The ASA upheld complaints regarding a TV ad and press ad for Nestlé’s Battle of the Breakfast campaign because the overall message of the ads was that their products were of greater nutritional value than the other foods which is why they were able to win the “battle”. The ASA also investigated the website copy which was linked to the “Battle of the Breakfasts” campaign. The website provided the facility for consumers to see values for each nutrient along with the percentage of GDA (side-by-side) of various breakfasts, but the ASA did not consider that the information was presented in a way which suggested that Nestlé’s cereals had particular beneficial nutritional properties compared to the non-cereal breakfast options. Because of this the rules of comparative nutritional claims were held not to apply to the website (Cereal Partners UK, 31 July 2013).
Comparative claims can only be made against foods in the same category of food (not meal) or which are ‘alternatives for consumption’. Ads which compared cereal with jam on toast and cereal with croissants breached the Code because, although these might both be eaten at breakfast, they were not considered foods of the same category (Cereal Partners UK, 31 July 2013). An ad for a meat substitute product which made the comparative nutritional claim “80% less saturated fat than lean mince beef” was considered acceptable because the ad made it clear the products were an alternative to meat, and so it was valid to compare their nutritional properties to meat (Marlow Foods Ltd, 10 October 2012).
Marketers may not make a comparative nutritional claim against a product which is itself able to bear a nutrition claim. An ad which compared vitamin levels in frozen vegetables to fresh vegetables breached the Code because fresh vegetables are able to bear the nutritional claim “source of vitamin C” (Birds Eye Ltd, 17 August 2011). Ads which made “reduced saturated fat” nutrition claims in comparison to products which could not make “low in saturated fat” nutrition claims were held to be acceptable by the ASA (Unilever UK Ltd, 15 August 2012, Marlow Foods Ltd, 10 October 2012).
It is possible to use one product as the sole reference for comparison provided that product is representative of the products in its category (Rule 15.3.1). The difference must be stated in the marcom and must relate to the same quantity of food (Rule 15.3.2, Unilever UK Ltd, 15 August 2012).
Nutrition claims and alcohol
The types of nutrition claim that can be made for an alcoholic product are very limited. Nutrition claims are only acceptable if they refer to low-alcohol levels, the reduction of the alcohol content, or the reduction of energy content. Nutrition claims which have the same meaning to the consumer as the permitted claims stated in rule 18.17, such as “light” (if referring to reduced alcohol content) or “reduced calories” may be acceptable, provided they comply with the relevant criteria for use set out in the Annex.
Factual comparisons relating to permitted nutrition claims may be made either “internally”, between an advertiser’s products (for example, if the calorie content has been reduced or is different from another product in the range) or between the advertiser’s product and competitor products. In order not to mislead, the reduction or difference should be significant. In the case of a reduced energy claim, the energy value should be reduced by at least 30% and should be accompanied by a clear statement of the number of calories per unit of alcohol. If a comparison is made, the comparison must take into account a range of foods in the same category, and the difference in energy value must be stated.
The rules surrounding nutritional comparisons are complex – marketers are urged to familiarise themselves with the legislative landscape and our Food: Comparative Claims guidance before making any claims.
Use of “only XX calories”, “low carb”, “zero sugar” etc.
Numerical statements of calorie or carbohydrate content should not be preceded by words such as “only”, as these are likely to be taken as making an unacceptable “low energy” claim.
In the 2021 Brewdog case above, the ASA found that the claims “only 90 calories per can” and “no carbs or sugar” were likely to breach rule 18.17 (Brewdog plc, 7 July 2021). Similarly, the ASA ruled the same year that “under 100 calories” was also an unacceptable nutrition claim (High Water, 7 July 2021) Again, whether or not these product meet the requirements of low energy claims would not be assessed because alcohol ads are prohibited from making such claims.
Claims such as “reduced sugar”, “half sugar”, “zero sugar”, or “reduced/low carbs” are also not acceptable, since they are not included in the list of permitted nutrition claims in rule 18.17.
In 2018 the ASA considered ads for an alcohol product which included the claim “This gin and tonic has 91 calories. A banana has 105 calories” which in the context of the ad was considered to be a comparative nutrition claim (a “reduced energy” claim). Whilst a “reduced energy” claim was permitted nutrition claim for an alcohol product, the conditions of use set out in the Annex included that the comparative nutrition claim must be made with products within the same category. The ASA considered that alcoholic-mixed drinks and fruits did not fall into the same food category and therefore concluded that the comparative nutrition claim breached the Code (The Scottish Gin Society, 5 September 2018).
See "Food: General"