Beware of the ‘hidden’ nutrition claim

23rd October 2020

With a lot of people trying to banish weight-gain from a prolonged period of time spent at home, it is a good time for manufacturers and retailers of health foods to promote their products. An Advertising Standards Authority (“ASA”) ruling from earlier this year, however, brings a warning in relation to the nutrition claims such products can make.

The ASA investigated complaints made in relation to a website advertisement from a food company for a number of table sauces. The advertisement included the following phrases:

  • “Skinny Sauce – Virtually Zero® Calorie, Sugar Free, Fat Free Sauces”
  • “…guilt free sauce dippin’/dunkin’ [sic] at dinner time!”
  • “The Skinny Food Co Skinny Sauces are Virtually Zero® Calorie, Zero Sugar, Zero Fat *Per Serving*”
  • “Guilt free Sauces…”

A further complaint was also investigated in relation to a paid-for Facebook post that included the following:

  • “0 Calorie Syrups”
  • “Zero Calorie”

The ASA’s CAP code provides that only nutrition claims permitted by EU law, or claims that would have a similar meaning to consumers, can be used in marketing. The ASA concluded that the phrases “0 Calorie Syrups” and “Zero Calorie” would be understood by the consumer to mean that the sauces did not contain any calories; and that the phrase “Virtually Zero® Calorie” would be understood to mean that the sauces only had a negligible calorific value.

The ASA considered that these claims would have the same meaning to consumers as the permitted nutrition claim “energy-free”. In order for a product to make the claim ‘”energy-free”, the product must not contain any more than 4 kcal (17kJ) per 100ml. Unfortunately for the company subject to the investigation, none of the products met this criteria.

Permitted nutrition claims are listed in the Annex to Regulation 1924/2006 (“the Regulation”), made directly enforceable in the UK by each Government’s Nutrition and Health Claims Regulations 2007. For a product to make a nutrition claim, it must comply with the specific requirements as detailed within each individual claim.

Article 1(3) of the Regulation allows for a trademark or brand name, which may be construed as a nutrition claim to be used, only where it is accompanied by a permitted nutrition claim. The ASA concluded that where the trademarked claim “Virtually Zero” was accompanied with a reference to calories, it would be considered as a whole to amount to a nutrition claim. Since the sauces did not fall within the criteria for the only relevant permitted nutrition claim of “energy-free”, the advertising breached the CAP code.

What the ASA’s ruling does, is emphasise the importance of ensuring that the words and phrases used in a product’s description are chosen very carefully. Not only must any nutrition claim comply with the requirements in the Annex, but any claims which have the same meaning as a permitted nutrition claim, will also need to comply.

If you would like advice on hidden nutrition claims or what claims you can make about your food product, or indeed any general advice regarding the compliance of your product, please contact Gemma Casey.

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