What's the issue?
Consumer awareness of the content and effects of the food they purchase is ever increasing, driven by health, environmental and social concerns. The sector is also heavily regulated, comprising a mixture of general advertising rules and rules set out in food-specific legislation.
Getting marketing and labelling right is important: complaints and regulatory sanctions can lead to negative press and can stifle the success of a new product or reduce customer confidence. They can also result in marketing material – or the product itself – being recalled, which can be a costly process.
Here, we discuss the legal and regulatory framework, highlighting some of the common pitfalls of food claims in the UK and steps manufacturers and advertisers can take when considering labelling and advertising their products.
The CAP and BCAP Codes
Marketing communications relating to food must comply with the rules set out in the CAP Code (non-broadcast advertising) and the BCAP Code (broadcast advertising), both of which are regulated by the Advertising Standards Authority (ASA). The Codes regulate adverts that are misleading or cause harm or serious or widespread offence and contain specific rules on particular issues (including claims around food, food supplements and associated health or nutrition clams). They therefore deal with issues such as dubious nutritional claims and claims about the health benefits of foods.
We discuss how the Codes apply to specific types of foods and claims below but the general rule that marketing must not be misleading should always be borne in mind.
The FIC Regulation
Key rules relating to the presentation of "food information" are set out in Regulation (EU) No. 1169/2011 (FIC Regulation), which, following Brexit, continues to apply in Northern Ireland and forms part of 'retained law' applicable to Great Britain (GB). The retained legislation has some changes to reflect the UK's departure from the EU.
Food information is broadly defined as information concerning a food and made available to the final customer by means of a label, other accompanying material, or other means including modern technology tools or verbal communication. It therefore covers information in food labelling and marketing.
Mandatory food labelling requirements are set out in the FIC Regulation, and generally concern safety information such as the list of ingredients, use by dates, allergens and nutritional information. Voluntary food information is also often provided on food labelling and in advertising, such as nutrition claims (eg low fat, sugar-free), health claims and other claims such as that the food is suitable for vegetarians or vegans or is organic. Voluntary food information is also regulated by the FIC Regulation, as well as additional specific regulations (such as organic labelling) as set out below.
The FIC Regulation specifies that food information must not be misleading, particularly regarding:
- the characteristics of the food (ie nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production)
- attributing to the food effects or properties which it does not possess;
- suggesting the food possesses special characteristics when all similar foods possess such characteristics (eg by specifically emphasising the presence or absence of certain ingredients and/or nutrients); and
- suggesting, by means of appearance, the description or pictorial representations, the presence of a particular food or ingredient when in reality a component naturally present or an ingredient is normally used in that food has been substituted with a different component or different ingredient.
Food information is also required to be accurate, clear and easy to understand for the consumer.
The application of the above rules is broad and applies to labelling and advertising, as well as the presentation of the food (eg its shape, appearance, packaging, packaging materials, and how the food items are arranged and the setting in which they are displayed).
Nutrition and health claims
Health and nutrition claims for food products are regulated by Regulation (EC) No. 1924/2006. Like the FIC Regulation, it continues to apply in Northern Ireland and is 'retained law' in GB. They are considered below.
Nutrition claims
Nutrition claims are commonly seen on the packaging and advertising of a variety of foods. These claims will state, suggest, or imply that food has a particular beneficial nutritional property due to its calorific value and/or the nutrients and substances that it does or does not contain. Permitted nutrition claims include "high in protein", "low fat", or "sugar free", but use of these claims is contingent on satisfying the specific criteria that apply to each of these claims.
Only permitted nutrition and health claims can be made in relation to food sold or advertised in the UK as specified in the legislation. The precise rules differ slightly in GB and Northern Ireland, as the latter continues to follow the EU legislation. The general premise is that only nutrition and health claims that are permitted as listed on the applicable registers can be used, and only if the specific conditions of use are met. The GB register of nutrition and health claims (NHC) is available here. The applicable register for Northern Ireland is the EU register.
The claims listed in the EU and GB registers are broadly applied, meaning that attention needs to be paid to the 'spirit' of each claim. No specific wording is required for the claim to fall within a listed claim: for example, "contains no sugar" would be subject to the same conditions as "sugar free".
The ASA also has specific guidance on making nutrition food claims in marketing communications. The guidance has three main messages:
- Statements made regarding a food product's ingredients must not make implied nutrition claims by presentation. The ASA ruled in 2008 that the claim that Jaffa Cakes have "only one gram of fat" amounted to a "low fat" claim, since it suggested that the products were low in fat. At the time, the fat content of Jaffa Cakes did not fall below the required threshold for a low fat claim of 3g of fat per 100g, which led the ASA to rule that this claim was misleading (United Biscuits (UK) Ltd t/a McVitie's, 15 October 2008).
- Use of statements such as "only XX calories", "low carb" and "zero sugar" are likely to amount to unacceptable "low energy" claims. To make such a claim lawfully, the food product must not exceed the threshold of 40 kcal (170 kJ)/100 g for solids, and 20 kcal (80 kJ)/100 ml for liquids.
- Comparative nutrition claims may only be made against foods in the same category, where the comparator cannot itself bear a nutrition claim. Further, there are just four permitted comparative nutrition claims ("increased [name of the nutrient]", "reduced [name of the nutrient]", "energy reduced" and "light"), and so marketers must take care to ensure that they do not make comparative claims that fall outside the restrictive remit of those permitted. The ASA did not permit comparative claims to be made between cereal and jam on toast or between cereal and croissants because they were not foods of the same category, and also because the portion sizes that were compared were not the same (Cereal Partners UK, 31 July 2013).
Health claims
Health claims are those claims that either state, suggest or imply that there is a relationship between health and either a food category, a food, or one of its constituents. For example, "supports dental health", or "contributes to the normal functioning of the nervous system".
Again, the general premise is that only health claims listed on the applicable NHC and EU registers mentioned above can be used, and only if the specific conditions of use are met. ASA guidance requires advertisers to hold documentary evidence showing that the food product meets the conditions of the use of the claim as specified in the NHC register, and to ensure that consumers understand claims made to have the same meaning as the authorised health claim.
Advertisers should ensure the claim is presented clearly and without exaggeration, and that any rewording of authorised health claims does not change their meaning to consumers. For example, the ASA ruled that the claim "for strong bones" regarding calcium would not be understood by consumers to have the same meaning as the authorised claim "for normal growth and development of bones" (Nutricia Ltd, 29 January 2014).
Health claims are often (though not exclusively) associated with food supplements. The legal definition of a 'food supplement' is a product whose purpose is to supplement a normal diet. They will be concentrated sources of vitamins or minerals or other substances with a nutritional or physiological effect, alone or in combination, marketed in dose form. They make take the form of capsules, pastilles, tablets, pills and other similar forms, sachets of powder, ampoules of liquids, drop dispensing bottles, and other similar forms of liquids and powders designed to be taken in measured small unit quantities. A common pitfall seen with some food supplements is that unauthorised health claims or impermissible medical claims are made.
- In the UK, there are specific Regulations regulating food supplements at a country level (eg. Food Supplements (England) Regulations 2003), which implemented the EU Food Supplements Directive (Directive 2002/46/EC). UK food supplements legislation prohibits labelling, presentation and advertising that attributes the properties of preventing, treating or curing a human disease or that refers to such properties.
- Health and related claims made in relation to a product may also be considered by the UK's regulator for medicines, the Medicines and Healthcare products Regulatory Agency (MHRA), in assessing whether a product qualifies as a medicinal product or traditional herbal remedy (and thus requires a marketing authorisation or traditional herbal registration (THR) under the Traditional Herbal Medicines Registration Scheme). The MHRA conducts market surveillance and will write to businesses making medical claims (whether explicit or implicit), which can include a request to amend the claims and/or take the product off the market. Failure to respond to such a notice can result in a formal warning letter and subsequent enforcement action. The MHRA's guide to what is a medicinal product provides helpful guidance and includes a list of words and phrases that have contributed to a determination by the regulator that a product was a medicinal product. The list is non-exhaustive and will depend on the context in which the claim is made. Examples include "alleviates", "cures", "helps maintain normal mood balance" and "clinically proven". Claims are viewed in the round and it is not a simple matter of avoiding certain words or phrases. Businesses will therefore need to carefully review packaging and marketing materials, as well as any advertising campaigns, to ensure that they do not make any unauthorised health or medical claims.
Product-specific claims
- Food supplements. In addition to the issues around health claims, there are mandatory labelling requirements for food supplements that must be complied with under the UK Food Supplements legislation. For example, food supplements must be labelled as a "food supplement", state that supplements are not to be used as substitutes for a varied diet and note the conditions for use and storage instructions.
- Novel foods. A novel food is defined by retained Regulation (EU) 2015/2283 on novel foods as a food that was not used for human consumption to a significant degree within the UK (for the UK), or the EU (for the EU) before 15 May 1997, and falls within at least one of the categories set out in legislation. Such categories include food consisting of, isolated from, or produced from microorganisms, fungi, algae, animals or their parts, and/or plants and their parts. There is a register of novel foods which sets out a list of novel foods permitted for use in GB, and a similar list set out in legislation for the EU. Should a manufacturer or importer wish to place on the market a novel food that does not feature on the relevant list, it must either apply for authorisation, or remove or replace the novel food ingredient. This will be a commercial decision and depend on how quickly that party wishes to get the product to market.
- Foods high in fat, salt or sugar (HFSS). There are restrictions on how HFSS foods may be marketed following amendments to the Health and Care Act 200. The restrictions are also reflected in the advertising Codes. In non-broadcast media, rules prevent HFSS products from appearing in media specifically directed at anyone under 16, or where under-16s make up more than 25% of the audience. For broadcast media, the rules focus largely on content and there are currently no placement restrictions specific to broadcast media. New restrictions on the advertising of HFSS products were originally planned to come into force in January 2023. They were postponed for a year and have now been further delayed until 1 October 2025. They introduce a 9pm TV watershed for HFSS products and a restriction on all HFSS paid-for advertising online. For further information on the rules on HFSS products, please see our Advertising quarterly article on this topic.
- Foods with reserved descriptions. Some foods have "reserved descriptions" that can only be used if the food in question has a certain composition – the terms can only be used if they meet the statutory requirements. A non-exhaustive list of these foods is set out in the annex for GB.
Other common statements and/or representations
- Organic. In the UK, organic products are regulated by the Organic Products Regulations 2009, which implemented Regulation (EC) No. 834/2007 (Organic Products Regulation). Businesses looking to market food products as "organic", use other related terms such as "organically produced", or use a brand name including the word "organic", must ensure that the products meet the GB or EU organic standards which are set out in Articles 19 and 23 of the Organic Products Regulation. References to organic in the list of ingredients must also meet the same requirements. If organic claims are to be made in the labelling or marketing of a food product in GB, or the EU organic logo is to be used in the EU or Northern Ireland, 95% of the product's ingredients must be organic. In addition, organic production rules must be complied with, statements of agricultural origin must be displayed, and certification by an organic control body is required. Until 31 December 2023, food certified as organic in the EU will continue to be accepted as organic in GB, and the EU will also recognise GB certifications for the purpose of exporting organic products until this date.
- Allergen-free/free-from. Making a "free-from" claim is a guarantee to consumers that the food is suitable for all with an allergy or intolerance to that referenced allergen. Such a claim should only be made following a rigorous risk assessment of the final product's ingredients, process, and supply chain, to assure the absolute absence of the specific allergen. For example, the use of "gluten-free" and "very low gluten" claims is subject to a legislative maximum threshold of gluten that is allowed per kilogram of the final consumer product under Commission Implementing Regulation (EU) No. 828/2014 (which is retained law). All other "free-from" allergen claims, in the absence of a legislative limit, will be construed as absolute.
- The UK has been long familiar with vegetarian and vegan diets, and the average British consumer would understand the terms "vegan" and "vegetarian". Though Article 36 of the FIC Regulation (both the EU text and retained law) provides for further legislation regarding voluntary food information related to suitability for vegetarians or vegans, there is currently no statutory definition of "vegan", "vegetarian", or "plant-based" in the UK (or at EU level). The general rules regarding food information apply, but the lack of statutory definitions and conditions can lead to inconsistency over what these terms actually mean. The Vegetarian Society and the Vegan Society logos are often used by businesses on their products, but use of those marks is subject to the respective society's application requirements and use conditions. Use of these logos (with the consent of the applicable society) is a way that businesses can demonstrate that their products meet particular standards.
Repercussions for making unlawful or misleading claims
It is important to remember that the ASA's remit is in relation to advertising and marketing communications. Products and their packaging are generally excluded from the scope of the advertising Codes. However, when they are featured in marketing communications, the presentation of the ‘pack shot’ and any claims that are visible will fall within remit in that particular context.
Complaints about the advertising of food claims can be made to the ASA under the advertising Codes. Should the ASA find that the food claim in issue is in breach of the advertising codes, it will rule that the ad must not appear in the same form again. ASA has no prosecutor powers, however their rulings are made public on the ASA website and may appear in the press, which would likely generate negative publicity for the manufacturer and its products.
The ASA will often liaise with the MHRA where the advertising compliant involves medical claims. Making a medical claim could also lead to enforcement action directly from the MHRA as the regulator – whether arising from a complaint or its own market surveillance. There are different levels of action that could be taken, from a warning notice to remove the offending claim, to suspension or prohibition notices to suspend or ban the supply of the product.
In the UK, a customer, competitor, or interested group may also make a complaint to Trading Standards. Depending on the severity of the food law breach, Trading Standards may issue an improvement notice to amend the advertisement or packaging (and could order the product to be withdrawn from the market pending such amendments), or in the most serious instances, it might issue criminal proceedings that could result in custodial sentences and/or fines.
Manufacturers might also face the costs of recalling products from the market and re-labelling. Reputational damage may also have a negative impact on customer and consumer confidence in the brand and/or the product.
Key takeaways
- Food products must be marketed in a clear and accurate way, minimising the risk of misleading or confusing customers.
- Manufacturers and advertisers must also be aware of the specific restrictions and pitfalls about making particular food claims and ensure compliance with the patchwork of requirements.
To discuss your food product or any issues raised in this article, please reach out to a member of the team.
