ASA confirms Comparative Efficacy Claim falls outside of scope HCR / by Lara Skoblikov

In its recent ruling, UK Advertising Standards Authority ASA confirmed that the statement "WORKS TWICE AS FAST AS ANY OTHER ENERGY GEL" falls outside the scope of Regulation 1924/2006 on nutrition and health claims and therefore does not need an authorization.

Indeed, it can be defended that claiming that a product "works twice as fast" does not per se suggest a relationship between the product and health, as per the definition of "health claim" in the Regulation. 

Similarly, EFSA has considered on numerous occasions that claiming that a nutrient has improved bioavailability does not refer to a relationship between a food/food constituent and health. 

This provides an opportunity to food business operators to use certain marketing claims without the need for an authorization. However, it should be done with great caution. In particular:

  • The statement should be substantiated with adequate evidence. In the case at hand, the defendant could provide a study which was considered flawed and had not compared the product with all other competitor products on the market. The ASA therefore considered the claim misleading and instructed the defendant to remove it from the labelling.
  • Claiming that a food or nutrient is capable of increasing the bioavailability of other nutrients is considered a health claim. For example, the claim "Vitamin C increases iron absorption" is an authorized health claim.
  • While the ASA did not take this into consideration in the ruling at hand, the claim "works twice as fast" could still imply an effect on health depending on the context. In fact, "works twice as fast as other energy gels" could suggest that the product provides twice as much energy. This could be considered a reference to general, non-specific benefits of the nutrient or food for overall good health or health-related well-being in the sense of Article 10(3) of the Regulation and should be accompanied with a related specific permitted claim such as "contributes to normal energy-yielding metabolism", which is authorized for several nutrients.