Nutrition and health claims may be made on or about foods in commercial communications if they are authorised in the appropriate jurisdiction and any conditions of use are complied with.
The key legislation is Regulation 1924/2006 on nutrition and health claims made on foods (assimilated law in the United Kingdom/Great Britain). This is regulated and enforced by domestic Nutrition and Health Claims Regulations.
Nutrition and health claims are also supervised and regulated by the Advertising Standards Authority (ASA) through its Codes of Advertising Practice.
One issue that often arises in practice is whether a ‘claim’ made about a food simply provides a factual statement about its composition or makes a claim which ‘states, suggests or implies that a food has particular characteristics’ (Article 2 (2) of Regulation 1924/2006). The words used along with the context in which they are used are often key factors in determining whether a claim is deemed to be a nutrition or health claims and assessing how consumers would understand the information provided.
The Annex to Regulation provides a list of nutrition claims which include a specific claim but also ‘any claim likely to have the same meaning for the consumer’.
A nutrition claim is any claim which states, suggests or implies that a food has particular beneficial nutritional properties due to its energy (calorific value) or its nutrient or other substances.
A radio advertisement for Cadbury Delights chocolate made reference to similar Cadbury products. It included the following words: ‘Same soft nougat, same gooey caramel. But they’re only 91 calories. So, samey is exactly what we’re going for. Cadbury Delights. Same Cadbury, only 91 calories.’
The ASA received two complaints regarding the advertisement:
- One complainant, a registered nutritionist, challenged whether the claim “only 91 calories” was a nutrition claim (i.e. ‘low energy’) that breached the Code.
- The ASA challenged whether the ad made an implied “energy reduced” comparative nutrition claim, which breached the Code.
Responding to the ASA, Cadbury commented that ‘only 91 calories’ was used to provide factual information about the product’s calorific content per bar, rather than making a ‘low energy’ nutrition claim. In this regard, Cadbury had conducted consumer research which indicated that factual calorie information was a significant factor for their consumers.
The ASA concluded that ‘only 91 calories’ was a ‘low energy’ nutrition claim which did not meet the legal conditions of use (such a claim may only be made where a product does not contain more than 40 kcal per 100 g for solids, which was not the case with the Delights product).
The ASA considered the wording of the claim and, crucially, found it significant that the words ‘only 91 calories’ were spoken twice in quick succession during the advertisement. The ASA said that this emphasised that 91 calories was a low number of calories for a chocolate bar.
As the key question is what would meaning consumers are likely to place on the advertisement, the ASA may have come to a difference conclusion if ‘only 91 calories’ was only spoken once or more likely if the word ‘only’ was not used at all (as this emphasises the number of calories as being low).
The ASA also held that the advertisement compared the Delights product with other Cadbury chocolate bars and that by choosing that bar consumers would get the same taste experience but with fewer calories. This amounted to an ‘energy-reduced’ claim which did not comply with the conditions of use for making an energy reduced claim.
The ASA’s conclusion was that the advertisement must not appear in the same form (Cadbury had already said that the advertisement was no longer being broadcast). Cadbury was also ‘warned’ that they must ensure that when making nutrition and comparative nutrition claims they held evidence to show that the relevant products met the conditions of use for the claim.
Mondelez UK Ltd – ASA | CAP ruling dated 2 July 2025
Please do not hesitate to contact me for further information about making nutrition or health claims, or any other aspect of food information in England and Wales or the Republic of Ireland.
This article is provided for information only and does not constitute legal advice. Formal legal advice should always be obtained before taking or refraining from taking any action.
Ian Thomas can be contacted at ian@ianthomasassociates.com
He also practises from Gough Square Chambers, London – ian.thomas@goughsq.co.uk
Any comment or views expressed in this article are personal.