Nutrition and health claims (NHCRs) refresher

Nearly 20 years on, and Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (NHCR) is still catching out advertisers. We’ve reflected on some vintage Advertising Standards Authority (ASA) rulings and looked at some new ones, so you have a refresher of the key points.

Nutrition claims are still restricted

Back in 2008, the ASA published two decisions which rocked the food industry and showed everyone the real-world impact of the NHCR.

Having updated the Advertising Code to reflect the NHCR, there wasn’t yet a register of authorised health claims to apply, but the Annex listing authorised nutritional claims in place. Nutrition claims, i.e. claims relating to a positive aspect of a food, may only be made if listed in the Annex. 

Claims that food is “low energy” may only be made where the product doesn’t contain more than 40 kcal (170KJ)/100g for solids and claims that a food is “low in fat” may only be made where the product contains no more than 3g of fat per 100g for solids. The claims "Less than 11 calories each" for Maltesers (505 calories per 100g) and "only one gram of fat" per Jaffa Cake (8g of fat per 100g) were ruled in breach of the Codes.

In the intervening 17 years, there have been a lot of changes to food advertising, but the NHCR and Annex survived Brexit and the Ad Codes contain the same restrictions on nutrition claims. 

A chocolate bar ad was ruled in breach for the claim “only 91 calories” because the ASA remains of the position that the use of “only” means that the claim goes beyond a calorific statement and implies “low energy” (which cannot be made for the product range that starts for a range that starts at 413 kcal per 100g).

The ASA also considered that the way that the ad referred to the Cadbury Delight range in a way which implied an “energy reduced” comparative nutrition claim. “Energy reduced” claims required that the energy value must be reduced by at least 30% compared to other Cadbury products, which was not the case. 

The ASA considers “0g added sugar” to be equivalent to “with no added sugars”. The list of permitted nutrition claims allows "non added sugars" where no mono- or disaccharides, or any other food used for its sweetening properties have been added. If sugars are naturally present in the food, then "contains naturally occurring sugars" must be stated.

An advertiser was able to show that no mono- or disaccharides had been added and the ad had stated "contains naturally occurring sugars". However, the ad fell down because the ingredients included grape and apple juices from concentrate. Fruit juices from concentrate can be added for flavour or for sweetening purposes.

Using guidance from the DHSC as a reference point, the ASA noted the grape and apple were not included in the name of the drink, which was advertised as cucumber and mint, and concluded they've been added for sweetening purposes.

Health claims need to be authorised

Health claims are those which suggest or imply that a relationship existed between a food category, a food or one of its constituents and health. Only specific health claims authorised on the Great Britain nutrition and health claims register (the GB NHC Register) are permitted in ads promoting food or drink products. 

Claims which are not on the register and therefore cause the ad to be ruled non-compliant over the summer include:

• “made with powerful botanicals to encourage breast milk supply”
• “Health Benefits of Lion’s Mane - Reduces Anxiety and Stress”
• "combine the best of nutrition and medicine, helping you stay strong […] and energised every day […] and it comes with powerful antioxidant”

Not forgetting a number of unlicensed medicinal claims and unauthorised health claims for products purporting support GLP-1 production and aid weight loss which we featured in our ASA monthly insight for August.

Ads with health claims can’t feature a recommendation from an individual health professional 

“Health professional” isn’t defined in the law and has been quite widely interpreted by the ASA.

However, in a relatively clear-cut ruling, the ASA considered that featuring an influencer who was an NHS GP in an ad which made health claims in relation to Vitamin D, and recommended a specific product breached the Code.

Goes to show that just because laws and regulatory requirements are in place, it doesn’t mean that people are aware of them. If launching a new food product or business, make sure you know about the NHCRs and related ad rules and if you don’t know where to start, our specialist food and drink lawyers can help.