NOG 13. Food, Food Supplements and Associated Health or Nutrition Claims

Principle

Public health policy increasingly emphasises good dietary behaviour and an active lifestyle as a means of promoting health. Commercial product advertising cannot reasonably be expected to perform the same role as education and public information in promoting a varied and balanced diet but should not undermine progress towards national dietary improvement by misleading or confusing consumers or by setting a bad example, especially to children. The spirit, as well as the letter, of the rules in this section applies to all advertisements that promote, directly or indirectly, a food or soft drink product.

Background

These rules must be read in conjunction with the relevant legislation including the Food Safety Act 1990, the Food Labelling Regulations 1996 (as amended), especially Schedule 6, and Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (the EU Regulation). They apply to all broadcast advertisements for food products. The EU Regulation is mandatory and seeks to protect consumers from misleading or false claims. It came into force in July 2007 but was subject to a series of complex transitional periods. Specific conditions of use associated with authorised health and nutrition claims are determined at a European level. The EU Register of nutrition and health claims (the EU Register) lists all authorised nutrition and health claims as well as non-authorised health claims that have been rejected. It is available at: ec.europa.eu/nuhclaims/

Some transitional periods still apply, for instance, those affecting trade marks or brand names in use prior to 1 January 2005. In addition, there are claims that the European Commission has placed “on hold” whilst discussions take place on the best way forward for these types of claims. Claims that are “on hold” are subject to an extended transition period and are still permitted for use.

BCAP advises broadcasters to take advice on the effect of the EU Regulation.

Advertising industry stakeholders might find the Guidance to Compliance with European Regulation (EC) No 1924/2006 on nutrition and health claims made on foods, published by the Department of Health, useful:

Guidance to Compliance with European Regulation

Definitions
For the purposes of the rules in this section:

‘Nutrition claim’ means any claim which states, suggests or implies that a food has particular beneficial nutritional properties due to:
(a) the energy (calorific value) it provides; provides at a reduced or increased rate; or does not provide; and/or
(b) the nutrients or other substances it contains; contains in reduced or increased proportions; or does not contain;

‘Health claim’ means any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health.

‘Reduction of disease risk claim’ means any health claim that states, suggests or implies that the consumption of a food category, a food or one of its constituents significantly reduces a risk factor in the development of a human disease.

References to food apply also to drink products.

Rules

General

13.1 Radio Central Copy Clearance – Radio broadcasters must ensure advertisements subject to this Section are centrally cleared.

13.2 Advertisements must avoid anything likely to condone or encourage poor nutritional habits or an unhealthy lifestyle, especially in children.

13.2.1 Advertisements must not condone or encourage damaging oral healthcare practices, especially in children.

CLEARCAST GUIDANCE
Children, in particular, should not be encouraged to eat or drink shortly before going to bed or during the night and they should not be shown ‘midnight snacking’. Advertisements that feature adults eating during the night will be assigned a timing scheduling restriction to ensure children do not see them.

The ASA has ruled on this issue. Sample rulings are below:

https://www.asa.org.uk/Rulings/Adjudications/2014/8/Wm-Morrison-Supermarkets-plc/SHP_ADJ_270040.aspx#.VeAryvlViHg

https://www.asa.org.uk/rulings/mondelez-uk-ltd-a13-242140.html

13.3 Advertisements must not condone or encourage excessive consumption of any food.

CLEARCAST GUIDANCE
The ASA has ruled on this issue. The ruling can be found here

13.4 Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) are permitted in advertisements.

Only health claims listed as authorised in the EU Register or claims that would have the same meaning for the audience may be used in advertisements:

EU Register

CLEARCAST GUIDANCE
To ensure the meaning of claims are not altered, we urge caution in changing the wording of any authorised claim. The ASA has ruled on this issue. The ruling can be found here.

13.4.1 Nutrition claims must comply with the criteria in the EU Register.
13.4.2 Advertisements that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Advertisements must not give a misleading impression of the nutrition or health benefits of the product as a whole and factual nutrition statements should not imply a nutrition or health claim that cannot be supported. Claims must be presented clearly and without exaggeration.
1. 13.4.3 References to general benefits of a nutrient or food for overall good health or health-related well-being are acceptable only if accompanied by a specific authorised health claim.

CLEARCAST GUIDANCE
Foods may be described as 'healthy' or 'nutritious' only if Clearcast's nutrition consultants are satisfied that they are demonstrably capable of playing a significant role in a well-balanced diet. For the avoidance of doubt, this rule applies to food products but not recipe books, food magazines or newspaper supplements.

13.4.4 Claims of a nutrition or health benefit that gives rise to doubt the safety or nutritional adequacy of another product are unacceptable.

13.5 Comparisons between foods must not discourage the selection of options such as fresh fruit and fresh vegetables, which generally accepted dietary opinion recommends should form a greater part of the average diet. Advertisements must not disparage good dietary practice. No advertisement should suggest that a balanced and varied diet cannot provide adequate nutrients in general.

13.5.1 Comparative nutrition claims must compare the difference in the claimed nutrient to a range of foods of the same category which do not have the composition that allows them to bear a nutrition claim.
13.5.2 An advertisement may use one product as the sole reference for comparison only if that product is representative of the products in its category
13.5.3 The difference in the quantity of a nutrient or energy value must be stated in the

EC Guidance

CLEARCAST GUIDANCE
The ASA has ruled on this matter. The ruling can be found here.

13.6 These are not acceptable in advertisements for products subject to this section:

13.6.1 Claims that state or imply health could be affected by not consuming a food
13.6.2 Claims that state or imply a food prevents, treats or cures human disease. Reduction-of disease-risk claims are acceptable if authorised and listed in the EU Register.
13.6.3 Health claims that refer to the recommendation of an individual health professional.
13.6.4 References to changes in bodily functions that could give rise to or
13.6.5 Health claims that refer to a rate or amount of weight loss.

Vitamins, Minerals and Other Food Supplements

BCAP advises advertising industry stakeholders to ensure that claims made for vitamins, minerals and other food supplements are in line with the requirements of the EU Regulation.

13.7 Advertisements must not state or imply that a balanced and varied diet cannot provide appropriate quantities of nutrients in general. Individuals must not be encouraged to swap a healthy diet for supplementation.

13.7.1 Nutrition and health claims for food supplements must be permitted or

CLEARCAST GUIDANCE
The ASA has ruled on this matter. The ruling can be found here.

Infant and Follow-on Formula These rules must be read in conjunction with the relevant legislation including the Infant Formula and Follow-on Formula Regulations 2007 (as amended) and the EU Regulation.

13.8 Advertisements for infant formula are prohibited.

13.8.1 Advertisements must not confuse between infant formula and follow-on formula.

ADDITIONAL CLEARCAST GUIDANCE

Accurate Descriptions

Claims that products are ‘fresh’, ‘natural’ or ‘home-made’ are acceptable if they are accurate. Clearcast accepts unqualified claims that products or ingredients are ‘natural’ only if they are used in an unprocessed state. ‘Natural’ claims can, however, be appropriately qualified e.g. “natural lemon juice with preservative”, made from naturally sourced ingredients”. ‘Fresh’ can be used to describe only food and drink that is made available in its natural state. Clearcast does not accept that e.g. concentrated fruit juices can be described as ‘fresh’ and fresh juices that have been pasteurised to prolong shelf life should not be described as “freshly squeezed”. Frozen foods should not be described as fresh although they can be described as ‘freshly frozen’. Synthetic or processed foods are not necessarily inferior to natural foods, and ads should not imply that they are. If advertisements show visuals of e.g. real fruits, we would expect the product to contain those fruits.

Energy claims

'Energy' in the technical sense, i.e. a food's calorific value, should not be confused with the colloquial meaning of the word, i.e. physical vigour. Ads should not suggest that food energy is a remedy for physical exhaustion, or that the body's reserves of food energy are rapidly depleted by everyday activities to the extent of needing 'replacement' by the consumption of a calorie-rich food or drink. Advertisements should not suggest that food or drink is capable of providing an instant boost of physical energy. In contexts where a drink is presented as refreshment after physical effort, the role of the product should not be ambiguous. There is some evidence that some products can either speed recovery from physical exhaustion or extend the time until that physical exhaustion sets in for groups trained to the extent they are performing close to a state of physical exhaustion. Claims in this area will have to be supported by good evidence and advertising targeted at the kind of viewer for whom the claimed benefit has been proven.

The capability of foods to provide sustenance should not be exaggerated, e.g. a breakfast cereal should not claim to do more than help keep a person going until lunch-time, or get people off to a good start. Mental stimulation can be claimed for certain ingredients such as caffeine.

Manufacturing Processes

Advertisements should not mislead about the manufacturing process used to make advertised products. Showing mass-products being made by hand or by traditional small-scale methods are generally acceptable only if they are accompanied by a qualification e.g. ‘development kitchen’.

Country of Origin

Advertisements should not suggest that a product originates in a particular country if this is not true. A country of origin super may be required in ambiguous cases e.g. ‘brewed in the UK’. The ASA has ruled in this area. The ruling can be found here.

Additives

Advertisements should not imply that additives are harmful or undesirable, although it is acceptable to state that they are not present in an advertised product.

Food and Soft Drink Product Advertising to Children

Background
These rules should be read in conjunction with the general rules in this section and other rules in this code, especially Section 5: Children and, for television only, Section 32: Scheduling. The spirit, as well as the letter, of the rules in this section applies to all advertisements that promote, directly or indirectly, a food.

Definitions
“Children”: persons below the age of 16.

“Advertisements targeted directly at pre-school or primary school children”: advertisements that directly target pre-school or primary school children through their content as opposed to their scheduling. For rules on the scheduling of HFSS product advertisements, please see Section 32: Scheduling.

“Equity brand characters”: those characters that have been created by the advertiser and have no separate identity outside their associated product or brand.

“Licensed characters”: those characters that are borrowed equities and have no historical association with the product.

“HFSS products”: those food or drink products that are assessed as High in Fat, Salt or Sugar in accordance with the nutrient profiling scheme published by the Food Standards Agency (FSA) on 6 December 2005. In October 2010, technical support for the NP model was transferred from the FSA to the Department of Health. Information on the Government’s nutrient profiling model is available on the Government website at:
https://www.gov.uk/government/publications/the-nutrient-profiling-model

CLEARCAST GUIDANCE
Advertisers are required to complete the FSA Nutritional Profile Certificate to establish whether foods are a high in fat, sugar or salt food.

The certificate and guidance on its use can be found here.

For the avoidance of doubt, HFSS product advertisements may make nutritional or health claims in accordance with rule 13.4.

References to food apply also to soft drinks.

CLEARCAST GUIDANCE
CAP has published a guidance note to identify brand advertising that has the effect of promoting an HFSS product. The guidance can be found here.

13.9 Television only – Promotional offers must be used with a due sense of responsibility. They may not be used in HFSS product advertisements targeted directly at pre-school or primary school children.

13.9.1 Advertisements featuring a promotional offer linked to a food product of interest to
13.9.2 Advertisements must not seem to encourage children to eat or drink a product only to take advantage of a promotional offer: the product should be offered on its merits, with the offer as an added incentive. Advertisements featuring a promotional offer should ensure a significant presence for the product.
13.9.3 Advertisements for collection-based promotions must not seem to urge children or their parents to buy excessive quantities of food. They must not directly encourage children only to collect promotional items, emphasise the number of items to be collected or create a sense of urgency. If a promotional offer can also be bought, that must be made clear. Closing dates for collection-based promotions must enable the whole set to be collected without having to buy excessive or irresponsible quantities of the product in a short time.
13.9.4 Advertisements must not encourage children to eat more than they otherwise would. The notion of excessive or irresponsible consumption relates to the frequency of consumption as well as the amount consumed.

CLEARCAST GUIDANCE
Advertisements should not encourage poor eating habits such as over-consumption, eating frequently throughout the day or eating or drinking at bedtime. Clearcast considers excessive consumption as more than a declared portion size.

13.10 Television only – Licensed characters and celebrities popular with children must be used with a due sense of responsibility. They may not be used in HFSS product advertisements targeted directly at pre-school or primary school children.

That prohibition does not apply to advertiser-created equity brand characters (puppets, persons or characters), which may be used by advertisers to sell the products they were designed to sell.

Licensed characters and celebrities popular with children may present factual and relevant generic statements about nutrition, safety, education or similar.

13.11 Television only – No nutrition or health claim may be used in HFSS product advertisements targeted directly at pre-school or primary school children. For the avoidance of doubt, claims referring to children’s development or health are acceptable in non-HFSS product advertisements, if those claims are authorised by the European Commission.

13.12 Television only – Although children might be expected to exercise some preference over the food they eat or drink, advertisements must be prepared with a due sense of responsibility and must not directly advise or ask children to buy or to ask their parents or other adults to make enquiries or purchases for them. (Please see rule 5.9 in Section 5: Children)

CLEARCAST GUIDANCE
Advertisements should not encourage or condone attitudes associated with bad diets by e.g. showing a rejection or dislike of green vegetables.

Advertisements should not show children directly asking adults to buy specific products. Phrases such as “ask mummy to buy” are not acceptable and children should not be shown putting products in shopping trolleys.

13.12.1 Nothing in an advertisement may seem to encourage children to pester or make a nuisance of themselves.
13.12.2 Advertisements must not imply that children will be inferior to others, disloyal or will have let someone down, if they or their family do not buy, consume or use a product or service.
13.12.3 Advertisements must neither try to sell to children by appealing to emotions such as pity, fear, loyalty or self-confidence nor suggest that having the advertised product somehow confers superiority, for example, making a child more confident, clever, popular or successful.
13.12.4 Advertisements addressed to children must not urge children to buy or persuade
13.12.5 If an advertisement for a children’s product contains a price, the price must not be minimised by the use of words such as “only” or “just”.

13.13 Radio only – Promotional offers to children must be used with a due sense of responsibility. They may not be used in food or soft drink product advertisements targeted directly at pre-school or primary school children; that prohibition does not apply to advertisements for fresh fruit or fresh vegetables. Advertisements that contain a promotional offer linked to a food or drink product of interest to children must neither seem to encourage children to eat or drink a product only to take advantage of a promotional offer nor create a sense of urgency. If a promotional item can also be bought, that must be made clear. Closing dates for collection-based promotions must enable the whole set to be collected without having to buy excessive or irresponsible quantities of the product in a short time.

13.14 Radio only – Licensed characters and celebrities popular with children must be used with a due sense of responsibility. They may not be used in food or soft drink product advertisements targeted directly at pre-school or primary school children. That prohibition does not apply to advertisements for fresh fruit or fresh vegetables or to advertiser-created equity brand characters (puppets, persons or characters), which may be used by advertisers to sell the products they were designed to sell.

Licensed characters, equity brand characters or celebrities well-known to children may present factual and relevant generic statements about nutrition, safety, education and the like.

13.15 Radio only – Claims referring to children’s development or health are acceptable in radio food or soft drink product advertisements if those claims are authorised by the European Commission.