Sir: In last month’s ASA rulings on health claims governed by the Nutrition and Health Claims Regulation (‘Hydration ads help to revive Lucozade Sport,’ 18 January, p6), the tough line on how much flexibility advertisers have to depart from the legally approved wording of a claim has provoked much concern. However, less attention has been given to one aspect of the ASA’s ruling on Lucozade that permits some welcome flexibility.
The ASA accepted that elements of a claim might be communicated by images and context rather than words. So the fact claims related to prolonged endurance exercise could be communicated with video footage showing such exercise. The ASA focused on how consumers would understand images, with the result that on a poster ad the mere use of well-known sportsmen was not enough to communicate endurance since they are often used to promote brands.
In the early stages this regulation is being enforced largely by the ASA rather than Trading Standards using the courts. We should monitor carefully the approach taken by this non-legal body - and if necessary challenge ASA rulings by judicial review.
Professor Owen Warnock, partner, Eversheds
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