The 2024 Olympics are off to a flying start. Many companies will seek to use the Olympics as a platform to promote their products as well as catching the wave of positive health, fitness and well-being that Olympic athletes often inspire us to achieve. However, businesses need to remain vigilant to ensure that product promotions and advertising statements remain compliant with advertising standards.
Last week the Advertising Standards Authority (ASA) published eight rulings, six of which banned ads for products making unauthorised health claims about treating stress, anxiety and related wellbeing issues like fatigue, 'brain fog' and low energy. These rulings serve as a reminder that marketing content must comply with the nutrition and health claims register (the GB Register), which sets out a list of health claims that products can make in Great Britain. As the summer Olympics are now officially underway, the ASA is likely to be on high alert to food, drink and supplement health product ads that make unauthorised health and / or nutrition claims.
Understanding health claims
''Health claims'' are claims that that there is a relationship between a food or ingredient and health. Health claims are specific to food products (which includes food, beverages, ingredients, supplements and more), and they often state the impact of that product on health but do not state that it can treat disease, injury or any adverse condition.
Claims that a product can prevent, diagnose or otherwise treat disease, injury or any adverse condition are ''medicinal claims'' and medicinal claims can only be made in respect of medicines and medical products that are licensed and regulated by the Medicines and Healthcare products Regulatory Agency (MHRA).
While foods and medicines and ''health claims'' and ''medicinal claims'' are distinct, there is some overlap between them in ''disease risk reduction claims'', which can be made in respect of food products, provided those claims are authorised and listed in the GB Register on nutrition and health claims (which we discuss in more detail in the next section).
The legal framework
Health claims are regulated under domestic food law and retained EU Regulation (EC) No 1924/2006 (Regulations) (as amended), which ensures only authorised health claims can be made in respect of food products and requires claims to be listed in the GB Register and supported by scientific evidence. The GB Register lists all health claims that have been assessed and approved for use by the Department of Health and Social Care, and which ultimately helps businesses comply with the Regulations.
The requirements of the Regulations are also reflected in section 15 of the UK Code of Non-broadcast Advertising (CAP Code), which the ASA uses to enforce the Regulations. The Regulations and the CAP Code require marketing materials containing health claims to be (i) backed by evidence that satisfies the standards of the GB Register, (ii) presented without exaggeration and (iii) authorised health claims. Ultimately, the aim of the rules surrounding health claims is to ensure that health claims in marketing communications are clear, substantiated with evidence and not considered misleading to consumers.
Regulatory enforcement – assessing recent ASA rulings
An assessment of the ASA's rulings from 24th July 2024 shows that health and wellbeing claims have caught the ASA's attention and ads for health-promoting food products appear to have been targeted in this latest suite of enforcement activity.
One ad banned by the ASA was presented by Auri Nutrition for its ''nootropic super mushroom gummies''. The ad stated that the product could ''eliminate stress, obliterate brain fog, and improve focus''. The ad was held to be in breach on the basis that it presented unauthorised health claims and the products linked to those claims had not been substantiated through clinical evidence to support the claims made.
Similarly, multiple ads by Fee Güd in promotion of its mushroom gummies claimed that the products could reduce stress and anxiety, improve energy and boost focus and brain function. All claims of which were held to be in breach for implying the gummies held health properties i.e. reduced stress and fatigue claims. Again, there was a lack of substantiated evidence to demonstrate that the composition of the products marketed held the properties claimed. Fundamentally, the products and the claims presented in respect thereof were not authorised and listed on the GB Register.
Furthermore, an ad by Novomins claiming that its Night Time Gummies could reduce tiredness and fatigue, minimise stress and anxiety, foster better sleep and lead to ''a happier & healthier you'' was found to be in breach but on the basis that the better sleep claim was not supported by an authorised health claim. Further the general health claim that the consumer would become a healthier version of themselves was not accompanied by a specific authorised health claim and the claim that stress and fatigue could be reduced were exaggerated.
Like the aforementioned rulings, the remaining three rulings largely also considered similar health claims that the ASA challenged for similar reasons. From this, we see the type of health claims caught out by the ASA's recent rulings consists of claims that a product can reduce stress and anxiety, reduce tiredness and fatigue, and boost focus, energy and cognitive function. We also see that a range of commonplace health and wellbeing products have been targeted by the ASA, including gummies, supplements and vitamins.
With an expected increase in promotion of health and wellbeing products for both athletes and the general public over the course of the Paris 2024 Olympics, there is likely regulatory interest in ads for a variety of food products that have the similar goal of promoting wellness and health benefits, such as protein bars, meal replacement shakes, electrolyte drinks, vitamins, antioxidants and more.
How to make compliant health claims
To ensure health claims are compliant, any such claims should be backed by scientific evidence, be presented without exaggeration and be listed as authorised claims in the GB Register. The role that authorisation plays depends on whether the health claim is categorised as a specific health claim or a general health claim.
(i) Specific health claims
Specific health claims are claims that refer to a direct relationship between a food or ingredient and health and they can only be made if they are authorised and listed in the GB Register. Some examples of acceptable specific health claims provided by the ASA are ''this supplement helps with your immune system'' and ''supplement X contains Y, which speeds up your metabolism''.
(ii) General health claims
General health claims are claims that refer to general non-specific health benefits of a food or ingredient for overall good health. General health claims can only be made if they are accompanied and supported by an authorised specific health claim. Some examples of a general health claim provided by the ASA are ''good for you'', ''healthy'', or ''detox''.
Stay alert to regulatory requirements
The commencement of the Paris 2024 Olympics and the ASA's focus on unauthorised health claims mean that providers of health and wellbeing food products should be conscious of the regulatory requirements surrounding health claims in Britain. In particular, businesses should be capable of demonstrating that their health claims are backed up with scientific evidence as well as being authorised and listed in the GB Register.
We regularly advise on matters related to advertising compliance, so if you would like to discuss anything raised in this blog in more detail please get in touch.
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