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

Who is the average consumer and how can firms prove they are not speaking to them with their use of prohibited terms like probiotics?

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.

Population-specific

“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.  

Related News

Health claims advertising problems stem from communication breakdowns, says Leatherhead: 'Ad agencies typically aren’t as well-informed on health claims regulations as experts'

Leatherhead consults on health claims advertising - the ‘missing bit of the jigsaw’

ANH-I chief, Robert Verkerk PhD

EU probiotic and antioxidant health claim ban called “absurd”

European Commission passes law concerning generic descriptors, with some criticising the decision

EU passes generic descriptors law: Clearing up confusion or compromising commercial freedom?

Italy publishes probiotics guidelines

Italy publishes probiotics guidelines

Sainsbury still has Lancashire Farm natural and mango probiotic yogurt on sale

EU working group to discuss probiotic as a ‘general descriptor’

Yoghurt group lobbies EC over probiotic labelling ban

Yoghurt group lobbies EC over probiotic labelling ban

Submit a comment

Your comment has been saved

Post a comment

Please note that any information that you supply is protected by our Privacy and Cookie Policy. Access to all documents and request for further information are available to all users at no costs, In order to provide you with this free service, William Reed Business Media SAS does share your information with companies that have content on this site. When you access a document or request further information from this site, your information maybe shared with the owners of that document or information.