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), or relevant 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.
What are health claims?
“Health claims” are those which refer to a relationship between a food or ingredient and health. The rules on health claims apply to claims which suggest or imply a relationship between food and health, not just explicit claims.
‘Specific’ health claims for a food should only be made if the claim is "authorised" and listed on the GB (NHC) Register, or relevant register (rule 15.1.1). ‘General’ health claims reference a general benefit of a nutrient or food for overall good health or health-related well-being and are permitted in ads, provided they are accompanied by a relevant specific authorised health claim from the relevant register (rule 15.2).
Please see ‘Food: Health claims’ and ‘Food: General health claims’ for further detail.
Is probiotic a health claim or a general health claim?
CAP understands that ‘probiotic’ claims will likely fall under the scope of Section 15.
As with many of the claims that fall within the scope of the rules underpinned by the Nutrition and Health Claims Regulations, the situation with probiotic claims is quite complex.
CAP is aware of Department of Health and Social care guidance which suggests the word “probiotic” indicates that there is a relationship between food and health. That guidance also indicates that the terms like “probiotic” (including probiotic fibre) could, at the very least, be considered a general health claim making it acceptable in some contexts provided it is accompanied by an authorised specific health claim that is sufficiently closely related to that general health claim.
Context is important, and any claims which indicate a more specific action associated with the probiotic, or, another explanation of the specific probiotic benefits of the probiotic could push the claim into being a specific health claim, which would need to be authorised on the GB NHC Register (or relevant register).
As such, whether or not ‘probiotic’ claims will be considered a health claim (specific) or a general health claim will depend on the presentation.
In 2023 the ASA considered an ad for apple cider vinegar which included references to “live probiotic foods” and “with premium live probiotics to boost gut health”. In the context of the general claims about “gut health” in the ad, the ASA ruled that these were likely to be interpreted as general health claims and therefore acceptable if accompanied by a relevant authorised claim from the relevant register. In this case, the claims were not accompanied by an authorised claim and so the general health claims were ruled problematic (Willys Ltd, 15 March 2023).
What will be considered a ‘relevant’ authorised claim that is used to accompany a general health claim about a probiotic will again depend on the presentation.
What about prebiotic?
As with ‘probiotic’, ‘prebiotic’ claims are likely to fall under the scope of Section 15. The way in which the claims are presented in ads will likely affect whether they are considered by the ASA to be general health claims or health claims.
In 2023, the ASA assessed claims that a breakfast cereal provided “Prebiotic goodness for your gut” and “Prebiotic Oaty Clusters contains natural prebiotic chicory root fibre, helping support digestive health by increasing levels of important bacteria living in your gut, nourishing your gut microbiota”. This ad also included the text “Chicory root fibre contributes to normal bowel function by increasing stool frequency. All-Bran Prebiotic Oaty Clusters Original contains 5.4g chicory root fibre per serving, i.e. 45% of the required daily intake. Full beneficial effect is obtained with a daily intake of 12g chicory root fibre”.
It was noted that the claims “Prebiotic goodness for your gut” and “Prebiotic Oaty Clusters” related to the gut health in general and did not refer to a specific beneficial aspect of the prebiotic on gut health. As such, they were considered to be general health claims for the purpose of the Code.
Although these general health claims were accompanied in the ad by a relevant authorised claim relating to chicory root inulin, the ASA found that they had not met the conditions of use associated with the use of that authorised claim and so the claim was not acceptable as used.
The ASA also considered that “helping support digestive health by increasing levels of important bacteria living in your gut, nourishing your gut microbiota” was a specific health claim which was not authorised on the GB NHC Register. (Kellogg Europe Trading Ltd, 2 August 2023).
This suggests that some general “prebiotic” claims may be acceptable if they are accompanied by a relevant authorised claim from the GB Register, and any conditions of use associated with the use of such a claim have been met.
What about other claims in ads for this product type?
Claims in ads regarding bacteria which are not nutrition or health claims will be dealt with under the general rules against misleading advertising. Therefore, if a statement regarding bacteria does not refer to a nutritional benefit or a relationship between a food or ingredient and health, the marketer will still need to hold evidence to substantiate the claim (rule 3.7).
In 2013 the ASA investigated whether the claim "Yakult's unique bacteria are scientifically proven to reach the gut alive" could be substantiated. Because it considered that the body of evidence submitted indicated that significant numbers of viable LcS organisms survived transit to the gut after consumption of fermented milk products, such as the Yakult product, the ASA concluded that the claim had been substantiated and the complaint was not upheld (Yakult UK Ltd, 15 May 2013).
See also ‘Food: Nutrition claims’, ‘Food: General health claims’ and ‘Food: Health claims