Making a nutrition claim on your food product is a great marketing tool in these diet and health conscious times; however these claims are strictly applied and enforced. Enforcement may be by Trading Standards but is usually provided via the UK's Advertising Standards Authority (ASA). Whilst there are no fines at this instance, rulings are published and can be reported more widely as a result, where a complaint is upheld ads must not be repeated. The main deterrent would be wasted costs and resources and adverse impact on reputation.
A guide is provided below to some of the main pitfalls that may befall a marketer in referencing any nutritional facts about their food product.
Nutrition claims
A nutrition claim is one that refers to a nutritional benefit of a food, for example “high fibre” or “low sugar”. Specific permitted nutrition claims and the requirements for making them are strictly set out by EU Health and Nutrition Regulation 1924/2006 and implemented in the UK. Nutrition claims must comply with those provided for in the Annex/Register, this is replicated in the UK via the GB Nutrition and Health Claims Register Great Britain nutrition and health claims (NHC) register - GOV.UK (www.gov.uk). Claims may differ in wording, provided they still have the same meaning for the consumer.
Nutrition Claims and 'Flexed' Wordings - “only” “less than” “just”
Marketers must take care not to make an implied nutrition claim; for example, by using a ‘flexing’ word when making a nutrition statement or by presentation by which the meaning and implication is ‘flexed’ or ‘bent’ towards a claim. A factual statement may become an implied claim depending on how it is emphasised graphically, by context or by preceding words emphasising it. Key words to avoid making an implied claim include “only”, “less than”, “just” and “under”.
Whole phrases can also imply the same thing as these flexing words. For example, a complaint against a KitKat advert was upheld where the advert featured Father Christmas discussing having put on weight after eating too many mince pies, the claim "107 calories just the ticket", was considered to give the impression that a two-finger Kit Kat was “low in energy” when in fact the product had 510 kcal per 100 g (Nestlé UK Ltd, 16 June 2010).
Similarly, the ASA previously ruled that the claim "only one gram of fat" was likely to suggest that a Jaffa Cake was low in fat and therefore a “low fat” claim. In order to bear a “low fat” claim foods must have no more than 3 g of fat per 100 g whereas Jaffa Cakes contained 8 g of fat per 100 g (United Biscuits (UK) Ltd t/a McVitie's, 15 October 2008).
A Maltesers ad with a voiceover that stated "At less than 11 calories each, you'll need new ways to be naughty," Mars argued that it was more useful to say how many calories were in an individual sweet than in an entire bag, because they were designed to be shared and was factually correct rather than a claim. Upholding the complaint, the ASA ‘we concluded that the words 'less than' gave the misleading impression that a Malteser was low in energy'. Calorie claims should not be made for products with more than 40 calories per 100g. Maltesers contain 505 calories per 100g. ( Maltesers t/a Mars, October 2008)
The Department of Health has produced guidance in relation to the wider application of the Regulation which includes information on the interpretation of Nutrition claims and is available at Nutrition and health claims: guidance to compliance with Regulation (EC) 1924/2006 - GOV.UK (www.gov.uk)
Comparative Nutrition Claims
Comparative nutrition claims are permitted but the circumstances under which they can be made are restricted, not least because there are only four comparative nutritional claims listed in the Register/Annex. These are "increased [name of the nutrient]", "reduced [name of the nutrient]", "energy reduced" and "light".
Marketers must take care in the presentation of claims to ensure that they do not make comparative claims by accident.
The ASA upheld complaints regarding a TV ad and press ad for Nestlé’s Battle of the Breakfast campaign because the overall message of the ads was that their products were of greater nutritional value than the other foods which is why they were able to win the “battle”. The ASA also investigated the website copy which was linked to the “Battle of the Breakfasts” campaign. The website provided the facility for consumers to see values for each nutrient along with the percentage of GDA (side-by-side) of various breakfasts, but the ASA did not consider that the information was presented in a way which suggested that Nestlé’s cereals had particular beneficial nutritional properties compared to the non-cereal breakfast options. Because of this the rules of comparative nutritional claims were held not to apply to the website (31 July 2013 Cereal Partners UK - ASA | CAP).
Comparative claims can only be made against foods in the same category of food (not meal) or which are ‘alternatives for consumption’. Ads which compared cereal with jam on toast and cereal with croissants breached the Code because, although these might both be eaten at breakfast, they were not considered foods of the same category (Cereal Partners UK, 31 July 2013).
An ad for a meat substitute product which made the comparative nutritional claim “80% less saturated fat than lean mince beef” was considered acceptable because the ad made it clear the products were an alternative to meat, and so it was valid to compare their nutritional properties to meat (Marlow Foods Ltd, 10 October 2012).
Marketers may not make a comparative nutritional claim against a product which is itself able to bear a nutrition claim. An ad which compared vitamin levels in frozen vegetables to fresh vegetables breached the Code because fresh vegetables are able to bear the nutritional claim “source of vitamin C” (Birds Eye Ltd, 17 August 2011).
Ads which made “reduced saturated fat” nutrition claims in comparison to products which could not make “low in saturated fat” nutrition claims were held to be acceptable by the ASA (Unilever UK Ltd, 15 August 2012, Marlow Foods Ltd, 10 October 2012).
It is possible to use one product as the sole reference for comparison provided that product is representative of the products in its category. The difference must be stated in the marketing communications and must relate to the same quantity of food (Rule 15.3.2, Unilever UK Ltd, 15 August 2012).
Nutrition claims and Alcohol
The types of nutrition claim that can be made for an alcoholic product are very limited. Nutrition claims are only acceptable if they refer to
(i) low-alcohol levels,
(ii) the reduction of the alcohol content, or
(iii) the reduction of energy content.
Nutrition claims which have the same meaning to the consumer as the permitted claims, such as “light” (if referring to reduced alcohol content) or “reduced calories” may be acceptable, provided they comply with the relevant criteria for use set out in the Annex.
Factual comparisons relating to permitted nutrition claims may be made either “internally”, between an advertiser’s products (for example, if the calorie content has been reduced or is different from another product in the range) or between the advertiser’s product and competitor products. In order not to mislead, the reduction or difference should be significant. In the case of a reduced energy claim, the energy value should be reduced by at least 30% and should be accompanied by a clear statement of the number of calories per unit of alcohol. If a comparison is made, the comparison must take into account a range of foods in the same category, and the difference in energy value must be stated.
Implied & Non-Permitted Nutrition Claims in Alcohol
Numerical statements of calorie or carbohydrate content should not be preceded by words such as “only”, as these are likely to be taken as making an unacceptable “low energy” claim. This is explicitly set out by the ASA Food: Nutrition claims - ASA | CAP
In a ruling against Brewdog, the ASA found that the claims “only 90 calories per can” and “no carbs or sugar” were likely to breach rule 18.17 (Brewdog plc, 7 July 2021). Similarly, the ASA ruled the same year that “under 100 calories” was also an unacceptable nutrition claim (High Water, 7 July 2021) Again, whether or not these product meet the requirements of low energy claims would not be assessed because alcohol ads are prohibited from making such claims.
Claims such as “reduced sugar”, “half sugar”, “zero sugar”, or “reduced/low carbs” are also not acceptable, since they are not included in the list of permitted nutrition claims.
In 2018 the ASA considered ads for an alcohol product which included the claim “This gin and tonic has 91 calories. A banana has 105 calories” which in the context of the ad was considered to be a comparative nutrition claim (a “reduced energy” claim). Whilst a “reduced energy” claim was permitted nutrition claim for an alcohol product, the conditions of use set out in the Annex included that the comparative nutrition claim must be made with products within the same category. The ASA considered that alcoholic-mixed drinks and fruits did not fall into the same food category and therefore concluded that the comparative nutrition claim breached the Code (The Scottish Gin Society, 5 September 2018).
Most recently, in a ruling against Tennent Caledonian Breweries the ASA acknowledged that it was permissible for advertisers to make factual numerical statements about the calorific content of an alcoholic drink in their advertising, such as “66 calories a bottle”. However, the ads stated “Just 114 calories”, “THIS is Scotland’s lowest calorie lager [tick symbol] 60 calories a bottle” and “just 66 calories a bottle” . The ASA considered that by preceding the claims about the calorie content of the product with the word “just” or a tick symbol and the statement “Scotland’s lowest calorie lager”, they would be understood by consumers to mean that the product had the particular beneficial nutritional property of being low in calories (i.e. energy). The claims were therefore nutrition claims equivalent to a ‘low calorie/energy nutrition claim’, which were not permitted in relation to alcohol. (Tennent Caledonian Breweries UK Ltd - ASA | CAP, 21 Sept 2022)
If you need any assistance on any of your marketing or labelling claims please don’t hesitate to contact Jessica Burt at Mills & Reeve.