The New Year is upon us once again and that means resolutions – often about losing weight and getting in shape. Here’s some advice to help you make sure that your advertising of dieting foods, meal replacements and supplements doesn’t tip the scales towards a breach of Section 15.
Be careful with health claims
General health claims are broad and vague, like ‘healthy’, “superfood” or “#EatFitBeFit” and must be accompanied by a relevant specific authorised health claim listed on the EU Register.
Claims about weight loss, fat burning, metabolism boosting and similar are likely to be considered specific health claims. Only authorised health claims listed in the EU Register can be used in ads, and only if the product can satisfy the conditions of use. Claims need to be made in relation to the ingredient, rather than the product as a whole, and although some flexibility in the wording may be permitted, any change must have been made to improve consumer understanding, reworded claims must have the same meaning and they must not exaggerate the authorised claim.
Health claims that refer to a rate or amount of weight loss, e.g. “lost over 35 lbs in 40 days”, are not permitted in relation to foods or food supplements.
And nutrition claims too
Nutrition claims can be explicit or implied and includes claims like ‘fat-free’, ‘high protein’, ‘low calorie’ and claims that have the same meaning, such as “only one gram of fat” (i.e. ‘low fat’), “zero calorie" (i.e. ‘energy free’), “say no to added sugar” (i.e. ‘with no added sugars’).
Only nutrition claims that are listed in the Annex, or claims that would have the same meaning, can be used in ads and only if the product meets the conditions of use for the claim. References to beneficial nutritional properties that are not listed in the Annex, such as “refined sugar free”, can’t be used.
Comparative nutritional claims such as; ‘reduced [nutrient]’, ‘energy reduced’ and ‘light’, have additional requirements. As well as meeting the conditions of use, the comparison must be made with a range of other products from the same category, which can’t bear a nutrition claim themselves. Comparing with one product may be acceptable if that product is representative of the other products in the category. The difference should also be stated and relate to the same quantity of food.
Be sure about your botanicals
Claims for botanical substances that are listed as ‘on hold’ might be acceptable provided they have the same meaning as the ‘on hold’ claim and are compliant with Section 3. You would need to provide the evidence to support the claim and take into account any opinion EFSA may have published.
The ASA are yet to see good evidence to prove claims for botanicals; Pharma Nord (UK) Ltd’s “antioxidant” claims for Pycnogenol were found to be an exaggeration of the claims submitted to EFSA and Aspire Drinks Ltd’s claims about green tea extract helping reduce body fat were ruled not to properly reflect the relevant 'on hold' claim - and in both cases the claims were not adequately substantiated.
Accompany your trademarks and brand names
Trademarks or brand names which make nutrition or health claims that are not themselves authorised may still be used provided they are accompanied by a related authorised nutrition or health claim that the product meets the conditions of use for. If there are no related nutrition or health claims, the trademark/brand name can’t be used.
Trademarks and brand names existing before 1 January 2005, e.g. "Diabetone", are exempt from this requirement until 19 January 2022.
Watch your weight-loss programmes
Whether an ad promoting a weight-loss programme which includes food(s), as well as other elements, will fall under Section 15 depends on whether the claims are linked totally or partly to the food element, the context in which the claim appears and how it is presented. See the rulings on Forever Living Products (UK) Ltd and Jane Plan Ltd for some illustration.
Want to check if your ad is fit for publication? The CAP Copy Advice team, are on hand to give free bespoke advice. Also, legal advice is recommended to ensure you are in full compliance with the Nutrition and Health Claims Regulations reflected by the Food rules.
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