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
Distinguishing between health claims and beauty claims
Claims in ads that link foods or food supplements with the health of the skin may be considered to fall under the nutrition and health claims Regulations.
However, claims that link foods or food supplements with cosmetic appearance that are not linked to the underlying health of the skin, are unlikely to fall under the Regulations and will probably fall under rules in the CAP Code concerning substantiation and misleading advertising (rules 3.3, 3.7 and 12.1).
Whilst the difference in the claims may appear quite subtle, marketers need to be aware that the nature of the claim will likely affect which sections of the Code will be relevant and which potential restrictions on claims will apply.
Health claims and the skin
Claims which state or imply a link between a food and skin health (such as skin hydration or overall skin health) will likely fall under the food Regulation and will need to be authorised on the GB (NHC) Register in order to be used in advertising.
In 2021, the ASA ruled on an ad for a collagen supplement which included the claim “Her skin has become more hydrated” alongside before and after images. The ASA considered the claim would be understood by consumers to mean that using the product would make skin more hydrated, which had a beneficial effect on a function of the skin by protecting the skin against dehydration and aiding in its function of providing a barrier. As such, the claim was treated as a health claim for the purposes of the Regulation. Because the claim was not authorised on the GB (NHC) Register, the ASA ruled that it breached the Code (PBO Skincare, 29 September 2021).
In 2019, ASA considered similar claims for another collagen supplement including “Strengthen your skin from the outside in” and “Drench and hydrate your skin”. Because the ad was published prior to the UK’s departure from the EU, the ASA considered the claims under the EU Register. It considered that the claims would be understood to mean that the supplement had a physiological effect on the function of the skin such as a hydrating and a protecting effect and that the claims should therefore be authorised on the EU Register. Because they were not, the ASA ruled that they breached the Code (HealthArena Ltd, 19 June 2019).
Cosmetic claims and the skin
Claims that a food product can have a cosmetic effect, such as making skin more radiant or reducing the appearance of lines are wrinkles, are not likely to fall under the food Regulation. As such, the ASA is likely to expect such claims to be supported by robust documentary evidence, most likely in the form of clinical trials. Marketers should be aware that if claims imply the changes of cosmetic appearance are due to underlying physiological skin health and hydration, there continues to be a risk that the claims would be considered health claims for the purposes of the Regulation.
In 2019, the ASA considered claims including “Through supplementing our diet with extra collagen, we can help to combat skin ageing”; “Plump and fill out fine lines”; and “Reduce wrinkles with this anti-ageing drink”. Although these claims appeared in the same ad as claims which suggested the supplement would hydrate the skin (which were considered to be health claims for the purposes of the Regulation), the ASA considered these particular claims were not presented in relation to physiological skin health and instead, were claims about a cosmetic effect. As such, the ASA reviewed submitted clinical trial evidence for the claims but found that it was not sufficiently robust to support the claims (HealthArena Ltd, 19 June 2019).
In 2016, the ASA ruled on a TV ad for a collagen drink supplement which included images of a woman admiring her reflection in a mirror and smiling and drinking from a bottle of the supplement. Although the ad did not make any explicit claims, the ASA considered that due to the featured images and the references to collagen, consumers would understand that the product had a positive beneficial effect on the cosmetic appearance of the skin. Although clinical trial evidence was submitted, the ASA found that it was not sufficiently robust to support claims that the food supplement had an effect on the cosmetic appearance of the skin (Minerva Research Labs Ltd, 16 September 2016).
Marketers making claims that link foods (including supplements) with cosmetic appearance are advised to review this CAP Guidance which explains the types and levels of evidence required to support objective health and beauty claims in ads.