Labelling and marketing claims in the food & drink sector

In the UK food and drink sector, the use of labelling and marketing to provide health and nutrition claims on products is heavily regulated in order to protect consumers and prevent inaccurate or misleading claims. There are lots of important regulations to be aware of and practical considerations for businesses to think about in order to ensure their compliance is maintained.

This article looks at the main types of claims and what businesses in the food and drink sector can do to comply with the complex legislative measures surrounding labelling and marketing.

Health/nutrition claims

When making health or nutritional claims, it is imperative for food and drink manufacturers to stay abreast of the complex and constantly changing rules. A “health claim” is one that links a relationship between the ingredient and a health benefit. For example, claiming that consumption can lead to “healthier skin”. A “nutrition claim” focuses on the link between the product and its beneficial nutritional properties, such as “high in protein” or “low in fat”.

These claims are both heavily regulated in a bid to ensure that they are sufficiently substantiated with evidence and are not found to be misleading to consumers. In short, UK regulations require that any health and nutrition claim must be:

1. backed by evidence that satisfies standards in the nutrition and health claims register;
2. presented without any exaggeration; and

• authorised.

In the last few years, health and wellbeing claims have caught the attention of the Advertising Standards Authority (the ASA) and adverts for health-promoting products have been heavily scrutinised as a result. By way of example, a company’s claim that their product “unlocked a stronger body and state of mind” was found to breach the ASA code of practice on the basis that it was too generic and was not accompanied by sufficient evidence.

The regulation of food supplement advertising is similarly complex. With growing consumer appetite for food supplements, businesses should ensure that their labelling and marketing are compliant with regulations. Businesses should also remember that any claims suggesting a food can prevent, treat or cure human disease are strictly prohibited and can only be used in medicines which are licensed and regulated by the Medicines and Healthcare Regulatory Agency.

Eco-claims

In recent years, businesses have taken advantage of including claims around a product’s environmental credentials, in order to provide a unique selling point and/or justify a premium to the cost. Eco-labelling is rapidly growing in popularity, whereby food and drink businesses are adding labels to their product that refers to certain environmental credentials. Examples include “Organic” or “Rainforest Alliance” labelling. Almost three in four products on the shelves now feature some sort of green claim – thus demonstrating the rise in sustainability expectations. However, when such claims are untrue or misleading, this is known as greenwashing.

The UK Government’s guidance on the use of green claims in the Competition and Markets Authority (the CMA) states that businesses must be transparent, open and accurate about any environmental credential claims. The Digital Marketing, Competition and Consumers Act became law earlier this year and granted the CMA new powers to issue monetary penalties and enforcement notices for breaches of environmental claims, without needing court intervention. The penalties powers granted to the CMA under the Act are substantial and, while only the provisions related to the creation of regulations under the Act are currently in force, the impending changes should serve as a helpful deterrent against food and drink businesses making unsubstantiated green claims.

It is apparent that retailers are responding to consumer demand for sustainability but, at the same time, scrutiny has increased around potentially misleading environmental claims in the consumer goods sector. The CMA recently closed a year-long greenwashing investigation into Unilever following changes the company made to its previously “broad and vague” claims on products such as Dove and Lynx.

Next steps

So what can businesses in the food and drink sector do to restore consumer trust and maintain safety and accuracy of their products when it comes to labelling and marketing? Given the increased scrutiny and ever-changing regulations, it would be prudent for businesses to consider the following measures to protect their labelling and marketing claims:

• Proactivity – commit to honest labelling and create a culture of accountability by taking proactive measures to conduct regular audits and self-regulate in order to maintain market integrity
• Education – keep up-to-date with the government’s guidance and regulatory bodies findings, including preparing for the CMA’s increased enforcement capabilities regarding environmental claims. By raising awareness about the significant of labelling and marketing claims and educating their consumers and staff on how to understand claims, the industry can maintain transparency and ensure standards are met
• Seek legal advice – the consequences of non-compliance can be severe. Businesses should routinely consult with legal experts alongside regulatory bodies when developing or updating product’s health/nutrition/environmental labelling claims in order to stay abreast of legal updates and build a reputation for transparency whilst avoiding making misleading or false claims.

If you have any questions about the topics raised in this article, please get in touch.