Advertising claims and the food and beverage industry: "Eat, drink and be claim savvy"

Advertising claims (i.e. statements about what a product is, does, contains, does not contain etc.) are a key weapon in a marketeer's armoury, telling customers not only about the product or service itself, but also convincing them to opt for that product or service over a competitor's. While the right claim can catch a consumer's imagination and provide a real competitive advantage, the wrong claim could open a company up to a challenge by a competitor and legal action (the severity of which will depend on the relevant jurisdiction).

This article focuses on the approach in the UK but there are regimes that deal with the same topic (albeit in different ways) in most jurisdictions.

First things first, what do we mean by advertising claims?
Advertising claims are statements made about goods or services on packaging or advertising, whether online or offline, to encourage consumers to choose said goods or services and influence their commercial behaviour. For example: "the nation's favourite [x]", "new and improved flavour", "now with only half the calories".

The food and beverage industry is regulated, right?
Indeed it is regulated and tightly so. In the EU there is a legal framework governing a variety of issues relevant to food and drink; from the order in which ingredients must appear on the label to which warnings must appear on pack. This is of course not specific to the EU - many countries regulate what can be said about food and beverages. Part of this regulatory regime is a register of health claims (the "Register"). We don’t propose to go into detail here about the regulatory framework as it is extensive and very detailed (and could fill many articles) but this will inevitably be a key consideration.

Take care to consider whether claims made about a product may be straying into medical territory - nutritional supplements for example may do this. In the EU at least, "medicines" for the purposes of regulatory obligations aren't necessarily limited to pharmaceuticals.

So if we comply with the relevant regulatory framework, we don't need to worry about anything else?
No. There are also advertising rules to consider for non-health claims (remember that the only permissible health claims are those on the Register). Regulated by the Advertising Standards Authority (the "ASA") in the UK, the central principle to remember is that claims must not mislead and you must be able to substantiate all claims. For example, if you claim your product is organic, you must be able to provide sufficient evidence to support this. This is often more of a qualitative than a quantitative test - the evidence provided must actually support the claim. The advertising codes (the CAP and BCAP codes which deal with non-broadcast and broadcast advertising respectively) require advertisers to only make claims which comply with European Commission regulations, and the ASA may take action against health claims which are not on the Register and state that, for example, claims must not encourage the excessive consumption of food. The advertising codes contain further rules around what can be claimed in relation to food products and alcohol.

Care must be taken around advertising to children - the ASA has banned ads from being shown which are seen to irresponsibly encourage poor nutritional habits and / or exploit children's naivety and vulnerability. There are also rules in the advertising codes around weight management claims.

The ASA has the power to effectively ban adverts which breach their rules. Where their rulings are not complied with, they can refer breaches to Trading Standards who have a broader range of powers.

Is there anything else to consider?

Certification marks- The use of certain symbols or certification marks require compliance with a particular set of requirements and/or evaluation by a third party. Examples of this include but are not limited to the red tractor, soil association and RSPCA Assured marks.

Quality logos- You should also take care when using one of the three so called EU quality logos - Protected Designation of Origin (PDO), Protected Geographical Indication (PGI) and Traditional Speciality Guaranteed (TSG). These can only be used where a food or beverage comes from a particular region or is made in a particular way. For example, champagne can only be labelled as such where produced from grapes grown in the Champagne region of France.

Comparative advertising- Comparative advertising rules will also be a consideration when seeking to mention competitor products in claims. One of the key points to bear in mind is that any comparison with a competitor's products must be objective, verifiable and not denigrate them.

Endorsements- If you will be asking bloggers, celebrities or others to endorse your product, it is important that they make it clear that e.g. social media posts are adverts. For more information on endorsements, please see our previous article thatyou received on 04 November: "Using social media to commercialise your brand".