The ASA’s recent ruling on Willy’s serves as a good reminder to brands that making health claims on products is highly regulated and is subject to strict requirements. In addition to complying with the rules set out in the CAP Code and other applicable legislation, only health and nutrition claims authorised on the Great Britain Nutrition and Health Claims Register (GB NHC Register) are permitted.
What are health claims?
Health claims are those which link (whether implicitly or explicitly) a relationship between a certain food, ingredient or product to health benefits.
General health claims
General health claims are those which refer to a general benefit of a nutrient or food for overall good health or health-related well-being. General health claims may only be made if accompanied by an appropriate specific authorised health claim from the GB NHC Register. In other words, a product which does not meet the conditions for a specific health claim cannot be the subject of a general health claim.
The ASA has clarified that “accompanied” in this context means that the two claims must be next to, or immediately following, one another. On websites, the two claims should be on the same page, and in general, the specific claim should not be overshadowed by other aspects of the ad.
Additionally, the specific health claim must be directly relevant to the general health claim.
For example, in the Willy’s ruling referenced above, the ASA determined that the following phrases were general health claims:
- “Gently […] rejuvenating”;
- “With premium live probiotics to boost gut health”
- “to help you feel fantastic”;
- “wellness tonic”;
- “daily dose of natural goodness”; and
- “I feel better than I have in years”.
It is quite clear on the face of these statements that there is a claim being made about the products’ general health benefits, and none of these claims were accompanied by relevant, authorised specific health claims as is required. However, even claims that the products contained “live probiotic foods” were deemed to be general health claims. The ASA determined that consumers were likely to understand the word “probiotic” as a substance that would contribute to the general good health of the gut, highlighting the importance of considering how the claim will be understood by consumers in the overall context of the advertisement.
Specific authorised health claims
Specific health claims are those which state, suggest or imply that a relationship exists between a food category or other product and health. The GB NHC register sets out an exhaustive list of all currently authorised and rejected specific health claims. The list sets out which claims can be made about certain nutrient substances/foods/foods categories and any relevant conditions and restrictions on the use of these claims. For instance, a specific claim can be made about a protein rich food and its contribution to a growth in muscle mass only if the product contains a specific level of protein (12%).
Returning to the recent ASA ruling as an example, it was determined that the following claims made by Willy’s were specific health claims:
- “Help balance ph[sic] in the gut, leading to improved digestion”;
- “help to repopulate some of the good bacteria in your gut”;
- “speed up your metabolism”;
- “helped … lose weight”; and
- “boost the immune system”.
The ASA considered the claim in (i) to imply that the pH balance of the gut could be unbalanced, and if it was, then digestion could be negatively affected, and that this product could help to correct and improve digestive transit. Claims to help or improve the digestive process are specific health claims which must be on the GB NHC list in order to be used.
While the GB NHC list sets out all authorised specific health claims, it is important to also consider relevant legislation and accompanying government guidance before making any specific health or nutritional claims. In addition to shedding light on how to make health claims, it contains helpful FAQs and flowcharts.
Evidence and substantiation
As part of Willy’s response to the ASA, they provided a description of the product ingredients and explained the circumstances of its manufacture. They also provided links to articles from a wide range of newspapers, websites and journals to support the claims made in their advertising while they were waiting on certain laboratory test results. Willy’s did point out that as a small business it had been prohibitively expensive to obtain laboratory tests to substantiate all the claims made, and had mainly relied on publicly available information to evidence their claims.
This highlights the high level of substantiation (and evidential information) required by the ASA in order to compliantly use health claims in marketing and/or on products themselves.
What if you don’t comply?
While the ASA does not have the power to impose fines, non-compliance with the Advertising Codes may nonetheless carry adverse consequences.
The primary consequence is reputational damage. Not only does the ASA publish public rulings, but it can also “name and shame” non-compliant companies on a dedicated section of its website. The ASA can also ask search engines to remove paid-search ads which break the rules, place its own paid-search ads to highlight the advertiser’s name and non-compliance and work with social media companies to remove non-compliant content.
In addition to the immediate impact on your brand and the product in question, this type of action may impact a brand’s ability to develop commercial relationships with large retailers or stockists that may be wary of negative brand reputations, or influencers that the brand may wish to partner with for advertising and promotional purposes.
While for some companies appropriate testing to obtain evidence before making specific and general health claims might be an expensive up-front cost, running unchecked health claims can be much more harmful in the long run.
For further information, please contact:
Amy Cole, Bird & Bird
amy.cole@twobirds.com
