The Advertising Standards Authority’s (ASA’s) policing of EU health claims offers a ray of light to food firms looking to use them in advertising, according to Eversheds senior partner Owen Warnock.
Warnock told FoodManufacture.co.uk while the ASA slammed Lucozade Sports 2013 poster and TV ad campaign in a ruling last week, it had shown flexibility over the way health claims wording could be conveyed.
Meanwhile, a separate ruling on PepsiCo’s ad campaign promoting its Naked Juice Green Machine and Mango Machine drinks had other lessons to offer, he said.
“The two ASA rulings give some very useful indications as to the Authority’s approach. Some aspects of what they have said will be unwelcome to the industry – and may lead to legal challenges.
“Other aspects of the ruling in fact demonstrate a pragmatic and flexible approach by the ASA which will help businesses to comply with the rules whilst retaining commercially attractive advertising and labelling.”
In the case of Lucozade, the ASA had accepted that elements of a claim might be communicated by images and context rather than by words, he said. “So, in a TV advertisement, the fact that the claims related to prolonged endurance exercise could be communicated by video footage showing such exercise.”
However, use of sportsmen alone in poster advertising was insufficient to communicate endurance, because they were often used to promote brands, he said.
And he warned the ASA had insisted the wording of the Lucozade Sport and PepsiCo drinks stick closely to the literal wording of European Food Safety Authority (EFSA) approved health claims in other respects.
For example, PepsiCo’s ads relied on an approved claim for vitamin C. “The officially approved claim reads ‘Vitamin C contributes to the protection of cells from oxidative stress’,” said Warnock.
“The wording used in the advertisements was ‘antioxidant’ and ‘Juice Smoothies loaded with nature's elite fighting force to defend your body against free radicals (those nasty little molecules that attack your cells and could have an impact on your overall health)’. The ASA ruled that these strayed too far from the approved wording.”
The advertiser argued the EFSA scientific report that led to the vitamin C claims being approved had itself used the word ‘antioxidant’ several times.
‘Changing the meaning’
But Warnock said: “The ASA pointed out that the Department of Health guidelines warned against picking sentences or phrases from an EFSA opinion when adapting the wording of an authorized claim, because this could increase the risk of changing the meaning of the claim.
“The ASA considered that the words used in the advertisements wrongly strengthened the approved claim and rejected the assertion that the word ‘antioxidant’ was familiar to UK consumers and would be understood correctly.”
Referring to the Lucozade Sport ad, the ASA ruled that use of “fuels" was an unacceptable substitute for “contributes to the maintenance of performance”.
Warnock pointed out that the ASA said comparing the product favourably to water should not be done, because this was not authorised by the EU regulation.
The poster ad had also not made it clear that the substance the EU health claim related to was specifically carbohydrate-electrolytic solutions, he added.
Warnock said the ASA looked set to police EU health claims in the UK for now, but that the courts could assume that role as rulings were challenged by manufacturers.