In 2007, the then Minister of State for Public Health, Dawn Primarolo, announced new regulations on infant formula and follow-on formula. At the same time, she committed to review the effectiveness of the new controls on the advertising and presentation of follow-on formula. One of the key aspects of the infant formula and follow-on formula Regulations 2007 is a requirement that infant formula and follow-on formula shall be labelled, advertised and presented in such a way that enables consumers to make a clear distinction between such products so as to avoid any risk of confusion between the two. A recent ASA adjudication illustrates the grey area that advertisers must navigate in order to get their ads right.

A common approach by follow-on formula advertisements is to include health claims. Of particular relevance in such cases is EC Regulation 1924/2006 on nutrition and health claims. It ensures children’s development and health claims (Article 14) are authorised prior to use and provides a specific procedure for such authorisations. Some claims have completed the authorisation process and can be found on the Community Register of Authorised Health Claims. The Register is still being populated so don’t worry if it looks rather sparse. In this case the ASA considered the claim had neither been in use in compliance with national provisions before Regulation 1924/2006 came into force, nor authorised as required by Regulation 1924/2006. Additionally, the ASA considered the evidence submitted was not sufficiently robust to support the products claims in relation to children’s immunity and development and upheld that aspect of the complaint.  

The Food Standards Agency and the Department of Health published in March this year, an independent review looking at the effectiveness of controls on the advertising of follow-on formula. The panel’s report has been submitted to the Minister of State for Public Health for consideration. The Minister’s response to the report and its findings will be announced as soon as possible, so watch this space. 

Finally, the new Broadcast and Non-broadcast Codes for the first time include specific rules on the advertising of follow-on formula. Both codes explicitly state the prohibition on advertising infant formula to the public and that advertisements should not confuse between infant formula and follow-on formula. These rules are supported by the general rules that require all ads to comply with the law and not be likely to mislead.

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