You talkin’ to me? The grey zone around health claims in ‘commercial communication’

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How we define ‘commercial communication’ when it comes to health claims remains somewhat of a grey zone, according to a Leatherhead analyst.

Talking with NutraIngredients in the new product zone at this year’s Vitafoods, Leatherhead’s marketing and claims advisor Georgia Taylor discussed how communication around probiotics had changed since their virtual outlaw in the European Union under the 2006 Nutrition and Health Claims Regulation and its controversial generic descriptor annex

At the show’s area for new product launches there were still a few companies using the term probiotics on packs, while others made reference instead to the specific strain. This, she said, did not necessarily represent an uncompliant claim but rather a grey zone around communication to a savvy, industry audience at events like trade shows as well as through B2B media. 

Taylor said in the case of being called up by an advertising standards agency it would be up to a company to prove that communication of their product using the term probiotic was targeted at a specialised industry audience as opposed to the “average consumer” the regulation aims to protect.


“I think there is a lot of grey areas in terms of what is defined as a commercial communication. Especially when we talk about it being received by the final consumer,” she said.

“For the example of advisement on [B2B websites], in the case of those advertisers being challenged it would be up to them to demonstrate that most or all of the readers of the content on your website were businesses. Obviously there may be consumers that have that interest but if you are primarily targeting a business audience they may well be able to use that if they were challenged as a defence.”  

Who is the average consumer?

She said examples of firms being picked up on probiotics claims in the past had depended on whether they were targeting a broad audience of average consumers. Taylor said there may not be an average consumer in the literal sense, but the term defined by the European Court of Justice sets out an “objective test”.

“So it’s about identifying the consumer as being reasonably circumspect, having a certain amount of knowledge and reasonably observant and so on. So really it’s an objective test, but it’s something we have to apply. So it might not be achievable in practice but we have to have a bench mark by which to measure the interpretations of the communications we make about food,” she said.  

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