Advertising Considerations for Health and Wellness Businesses

WHAT YOU WILL LEARN

1. The CAP Code and BCAP Code govern non-broadcast and broadcast advertising respectively. The regulator is the ASA.

2. It must be made clear that an advertisement (including any promotion by an influencer on social media) is a marketing communication.

3. Care must be taken when making general and specific health claims and/or claims in respect of disease. All such claims are regulated and can only be made in compliance with the above codes and the nutrients and health claims register.

INTRODUCTION

In 2024 the health and wellness market in the United Kingdom was valued at £95 billion.  Consumer product businesses advertise heavily to generate awareness of their products including through the use of influencers, on social media, in print, and on the products themselves. The laws around advertising are complex and the Advertising Standards Authority (the “ASA”) takes a stringent approach in enforcing the rules protecting consumers from falling victim to misleading marketing claims.

WHO IS THE ASA?

The ASA is the UK’s independent advertising regulator, which administers the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the “CAP Code”). The CAP Code is the rule book for non-broadcast advertisements (such as those on social media). The UK Code of Broadcast Advertising (the “BCAP Code”) applies to all advertisements on television. Advertisers cannot opt out of these codes (together the “Advertising Codes”). Those in the health and wellness industry should pay special attention to codes 13 and 15 of the CAP Code and Codes 12 and 13 of the BCAP Code which regulate advertisements for weight control, slimming foodstuffs and aids, and advertisements for food, food supplements, and associated health or nutrition claims.

The concepts of marketing communications and advertising in the Advertising Codes is very broad and cover all communications, in any medium, that are designed to promote the supply of goods, services, opportunities, prizes or gifts, or to promote a cause or idea (with certain exceptions).

The ASA responds to complaints about advertisements made by members of the public, and, through the use of AI, proactively monitors advertisements. If an advertisement is found to have breached the CAP Code or the BCAP Code, advertisers are required to remove the offending advertisement, and re-publish it in a format acceptable to the ASA. This can be an expensive process.

HIDDEN ADVERTISING

When advertising on social media (which includes influencer marketing) it is incredibly important that posts advertising products are clearly identified as marketing communications without the relevant consumer having to actively engage with the post itself.

Case Study: In August 2023, influencer Katie Price posted a video on her Instagram account promoting her brand ‘The Skinny Food Co’ advocating a diet of 800 calories per day for the average adult woman. The description featured ‘#ad’, though this was not visible to prospective consumers unless they clicked on the post. The ASA received complaints about the post and investigated whether it breached the CAP Code. Because (i) ‘#ad’ was not visible unless the consumer engaged with the post; and (ii) Price did not disclose that the diet she was advocating should only be followed on a short term basis or that people should seek the advice of a medical professional before embarking on the diet, the ASA found that the CAP Code had been breached. The ASA provided Price with guidance as to how she could amend the post to make it compliant with the Code.

HEALTH AND NUTRITION CLAIMS IN ADVERTISING

The rules that the ASA enforces on health and wellness related claims made in advertising for food and food supplements are as follows:

General Health Claims

These include claims referring to the general benefit of a nutrient or food for overall good health, or health related wellbeing. Such claims are permissible, provided that they are accompanied by a relevant, appropriate, specific health claim, which must be an authorised claim as per the Great Britain nutrients and health claims (NHC) register, which is accessible here, and is discussed in more detail below.

General health claims include those such as “Superfood” and “Detox”. The specific health claims accompanying a general health claim need to appear next to or immediately following the general health claim in order to avoid breaching the CAP Code.

Specific Authorised Health Claims

These are claims that state, suggest, or imply a relationship between a food or ingredient and health. As above, only claims authorised by the NHC register are permitted in marketing communications for food and food supplements, as per code 15.2 of the CAP Code.

Case Study: Auri Nutrition, a US based food supplement company that marketed gummies in the UK which purportedly assisted those suffering from memory fog and fatigue, made specific health claims that these gummies were “nootropic”, and “adaptogens”. These specific health claims were not on the NHC Register. Auri Nutrition was informed by the ASA that the ad must not appear in its current form again, and that any specific health claims made must be authorised on the NHC register.

DISEASE CLAIMS

These are claims that state or imply that a food could prevent, treat or cure human disease and medical conditions, including some forms of neurodiversity. Certain disease claims are prohibited.

Case Study: in a series of rulings, the ASA held that a supplement which would lead to the “elimination of stress” would be understood by consumers as an implied claim to prevent, treat, or cure anxiety, and would therefore be prohibited under the CAP Code.

“Less than” claims, such as “less stress”, and “less anxiety” are found to be implied claims to prevent, treat or cure the disease of anxiety, which are also prohibited by the CAP Code.

NEXT STEPS

Businesses operating in the health and wellbeing sector must ensure that general health claims are presented alongside a specific authorised health claim included in the NHC Register and must avoid making disease claims to promote their products.

Should you require any further assistance on any of the topics mentioned in this article, please reach out to us at [email protected] or 020 7952 1723.