Messages made to fit the rules

Rules on food and soft drinks advertising in the UK are restrictive, especially when ads are targeted at children

by Susan Snedden

Susan Snedden  is a director in the intellectual property  and technology department of legal firm Maclay Murray & Spens LLP
Susan Snedden is a director in the intellectual property and technology department of legal firm Maclay Murray & Spens LLP

With the many restrictions on advertising, the issue of what can and can’t be claimed of a product has become a regulatory minefield. How can food and drink suppliers and retailers ensure advertising doesn’t backfire?

Who decides what ads are allowed?

Advertising in the UK is governed by the CAP and BCAP codes for broadcast and non-broadcast advertising, and policed by the ASA. The codes contain general rules relating to all ads but, in addition, there are specific rules relating to food and soft drink advertising.

The general principle is that ads must not mislead consumers by omitting key information, being unclear, or making unsubstantiated objective claims about products. For example, a firm claiming to have the leading or ‘number one’ product must have objective evidence showing that they are the market leader.

What extra rules apply to food and soft drink products?

There is a list of approved nutritional claims set out in EU legislation, and only nutritional claims contained in that list can be used to describe a product. The approved claims also contain criteria for use. For example, a product can only be described as ‘low fat’ where it contains no more than 3g of fat per 100g, for solids, or 1.5g of fat per 100ml for liquids.

Nutritional claims can be implied, and an ad’s context will be considered in assessing whether a misleading nutritional claim has been made. For example, an ad for Jaffa Cakes included the claim that each cake contained only 1g of fat. That was accurate and a complaint against that aspect was not upheld. However, Jaffa Cakes contained 8g of fat per 100g, so the ad’s overall message that they contained much less fat than expected was held to be misleading.

What about health claims?

As with nutritional claims, EU legislation on health claims sets out what is authorised in terms of claimed relationships between food and health. Health claims can only be used if the product complies with the stated criteria, and businesses must provide evidence.

Significantly, general health claims such as ‘good for you’, ‘wholesome’ or ‘superfood’ cannot now be used, unless accompanied by a specific health claim set out in the legislation.

What extra precautions are needed when advertising to children?

The codes contain stringent rules relating to advertising food and soft drinks to children, and businesses must not condone or encourage poor nutritional habits or unhealthy lifestyles. There are also rules relating to promotional offers, the use of licensed characters and celebrities and pressure to purchase – commonly referred to as ‘pester power’.

Additionally, there are restrictions on TV ads for high fat, sugar and salt products (HFSS) at times when children may view, and it has recently been suggested that these rules may be extended to other forms of advertising media.

What are the consequences of getting it wrong?

Food and soft drink advertising is a potential legal minefield. Getting it wrong can result in the ASA ruling that the ad must be withdrawn, and such rulings often result in negative publicity. Businesses must ensure they stay on top of developments in this fast-moving area, or face the possibility that their advertising could backfire.

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