4. The Guidance

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4.1 Flow diagram of the comparative claim process

The flow diagram below provides a high level overview of the comparative nutrition claim process from end-to-end. The remainder of section 4 and 5 describes each part of the process in detail.


4.2 Selection of food category for comparison

Comparative nutrition claims should only be made between foods of the same category. The Regulation does not directly provide a definition of “category” but does state that this requirement is without prejudice to Directive 84/450/EEC (now Directive 2006/114/EC concerning misleading and comparative advertising). The Directive provides, amongst other things, that “Comparative advertising shall, as far as the comparison is concerned, be permitted when …it compares goods… meeting the same needs or intended for the same purpose” (Article 4(b)). The intention of the Regulation is to enable the consumer to make informed choices. Therefore, the “category” must be understood by the average consumer. It should reflect a type of food/beverage for a similar usage or of a similar type, and should not reflect a total meal or consumption occasion.

4.2.1 General basis for category definition

Certain food groups are too broad to be considered as food categories in this context, and as a result may not assist an informed choice. For example, a “dairy products” or “breakfast cereals” category might be too large and would not reflect the typical purchasing patterns of consumers. Instead it would be more meaningful to the consumer and less burdensome to the manufacturer to use smaller categories, for example, ‘Greek style yogurts’ or ‘muesli’.

The comparative set should include a range of foods of the same category, including those of other brands. However, in line with the conditions listed in the Annex, a single product may be referenced as the comparator provided it is typical of the category and the claim clearly indicates the comparison base (e.g. ‘product Y’ contains 30% less fat than ‘named product X’)

4.2.2 Factors to consider

All of the following factors should be considered together when determining the category of products for comparison:

  • Primarily, the consumer should recognise the category selected as containing similar products
  • Products being compared should be similar in terms of overall nutritional content with the exception of the nutrient subject to the claim which should be at least 30% different, or 25% for salt. For example, it would be misleading to make a ‘reduced sugar’ claim about an unsweetened biscuit if the comparative set included both sweet and unsweetened biscuits.

AND

  • Products being compared should belong to the same category of products. These could be defined by (but not exclusively by) data from AC Nielsen, Kantar/TNS, IRI and Mintel, food additives regulation, trade association codes of practice, compositional standards, or position in supermarket aisle.

OR

  • Products being compared can be justified to be alternatives of consumption (taking into account the consumption occasion and usage) e.g. butter and margarine, dry gravy mixes and gravy pastes, different types of savoury bagged snacks, meat substitutes and meat.
  • Manufacturers should be able to justify that the category selected consists of products used in the same way/at the same moment of consumption.
  • If making a comparison against a single product, the comparator product’s nutritional values should be in line with the average of the category.

4.3 Sampling the marketplace

To achieve a typical range of products for comparison, a representative sample of the marketplace should be taken which aims to accurately reflect the bulk of marketplace consumption. Using high quality volume sales information from an independent source would therefore be best practice. Data should be specific to the market where the claim is being made. For example, if the product is sold over several different markets, the data should be representative of the individual markets. Providers of high quality sales data in the UK include AC Nielsen, Kantar/TNS, IRI and Mintel. Small companies which do not have access to this agency data can either buy it on a one-off basis or are advised to undertake comprehensive store assessments including key branded products and own-brand products in the relevant category in all major food and drink retailers. Sampling methods such as these will help to ensure that the products reviewed include, but are not limited to, the market leader and key branded and retailer own label products.

Although it would be ideal to sample the entirety of the chosen category, it is impossible to achieve given the huge choice of food products on the market in many categories. Products may have been recently delisted or may only be in limited geographical distribution and so cannot be purchased easily, or may not have nutritional information available online. One pragmatic approach is to capture at least 85% of the sales volume of the category, as recommended by the ASTM International Standard which contains internationally accepted guidance on the best practice for selection of products to sample a representative category (ASTM International, 2016).

Each product captured in the sample should cover the total volume for all pack variants where the nutrition per 100g is identical. Duplicates should not appear in the list, e.g. products with multiple pack sizes, single/multipacks and sharing packs of the same variant. This ensures products are fairly represented when the average nutrient content is calculated from the sample.

The products in the sample should be on the market and therefore the manufacturer should make reasonable efforts to ensure that historical or delisted products are not included.


4.4 Source of nutritional information and recording the information

Nutritional information must relate to the same quantity of food, and information per 100g/100ml for each product in the sample should typically be taken. For pre-packaged products, this information can be sourced from in-store audits of labels or via internet searches of manufacturer or retailer websites where nutritional information of products is often available. For unpackaged foods or staple grocery products (milk, bread, pasta, rice etc.) it may be useful to refer to standard literature sources such as McCance & Widdowson’s Composition of Foods, now available online. This should be supported by further data from in store assessments.

It is recommended that a list of products and the source of the data is compiled. This has the benefit of providing a clear reference if challenged, as well as providing a useful reference when updating data in the future. If using websites, one option would be to take a screen shot of the data as a record.

It may be difficult to account for every product in the sample. In such circumstances, it is sensible to record the reasons why in case of challenge e.g. product delists, limited distribution, or the inability to obtain product data.

Relevant nutrition information and, where possible, latest volume share data should be reviewed on an annual basis, or more frequently if it is apparent that the marketplace has changed, to ensure compliance. In some categories and instances, products of comparison may change very rapidly and it may be necessary to review the data earlier than 12 months. An example might be a comparison against a single named comparator which is representative of the marketplace at the time the claim was calculated, but which is then subsequently reformulated within 12 months.

Where compositional standards legislation sets out specific requirements for the labelling and composition of specific types of food, for example fruit juices, there may be little benefit in carrying out an annual review of the competitor set, if all competitors are bound to conform to the same nutritional standards.

It is recommended to make sure that the final data set and associated calculations are recorded and easily accessible, as it is likely to be required by Clearcast for any broadcast advertising which uses the comparative nutrition claim and also so that it can be made available in the event of any labelling challenge from trading standards.

4.4.1 Nutritional information as consumed versus as sold

Article 5(3) of Regulation (EC) No 1924/2006 states that ‘Nutrition and health claims shall refer to the food ready for consumption in accordance with the manufacturer’s instructions’. Furthermore, Regulation (EU) No 1169/2011 states that it is mandatory for the manufacturer to provide instructions for use ‘where it would be difficult to make appropriate use of the food in the absence of such instructions’. This means that for some categories nutritional information should be recorded for comparator foods as prepared (according to manufacturer’s instructions) and calculated back to a 100g/100ml amount for a like-for-like comparison. This applies only where the product cannot be and would not be consumed as sold and is required to be made up, and where the label carries manufacturer’s instructions. For products which can be consumed as sold and/or do not require preparation and/or carry no manufacturer’s instructions, nutrition and health claims should refer to the product as sold, e.g. fruit loaf, ready to eat breakfast cereals.

It should be noted that serving suggestions and recipe suggestions are not as definite or standardised as manufacturers’ instructions and cannot easily be used to calculate nutritional information as consumed. For example, ‘Why not try our muesli with a dollop of yogurt’ is a serving suggestion; whereas ‘Dilute 1 part concentrate with 4 parts water.’ is a manufacturer’s instruction.

4.4.1.1 Example formats

Products which can be made up with milk or water. If a group of products can be made up with either milk or water, according to the manufacturers’ instructions, it is reasonable to take the common one in order to make the comparative claim on a like-for-like basis.

Products which are required to be made up with milk. If milk is required for making up the product and the type of milk is not specified, it is reasonable to take semi-skimmed milk as the standard reference point, as this is the most popular milk consumed in the UK.

Products which are required to be made up with eggs. It is reasonable to take a medium UK egg as the reference point unless otherwise specified.

Products which are required to be made up with oil. If a particular cooking oil is not specified, it is reasonable to take a popular kitchen cupboard staple such as sunflower or rapeseed oil as the reference point unless otherwise specified.

Per 100g/100ml. Where manufacturer’s instructions specify liquid measures to be used with dry ingredients, the specific density of that liquid should be used to calculate the weight of the finished products when made up according to the manufacturer’s instructions1. One example is whole milk versus skimmed milk.

4.4.1.2 Further considerations

Care should be taken to consider that all the conditions set out in the Regulation and associated European Commission and Department of Health guidance are met when the products are made up in accordance with the manufacturer’s instructions. The examples below illustrate where manufacturer’s instructions may make it difficult to use a comparative nutrition claim and careful consideration of the products included in the comparison set should be taken so that products are compared on a like-for-like basis. Every claim should be considered on a case-by-case basis and further guidance sought from the authorities where necessary.

  • Some products may have imprecise manufacturer’s instructions, or instructions which require a large number of added ingredients. For example, Victoria Sponge dry cake mixes require eggs, milk, jam and buttercream to be added and made up in accordance with the manufacturer’s instructions. The precise amount of jam is not always specified in the manufacturer’s instructions, and it is foreseeable that the end result will be highly variable from a nutritional perspective since the added ingredients account for a large proportion of the fat, saturates, sugar and energy in the finished cake.
  • Some categories include standard products which are made up with milk and ‘instant’ versions which can be made up with only water, e.g. porridge, hot chocolate, and custard.
  • Some categories include both ready to eat products and products which require making up with water, e.g. gravy, custard.
  • Many culinary ingredients and sauces on the market are not ready for consumption, firstly requiring incorporation into a dish. These are labelled with recipes rather than manufacturer’s instructions because they can be used in so many different ways. Examples include seasoning pastes in sunflower oil.

4.5 Calculating a category value for a nutrient and/or energy comparative claim calculation

Regulation (EC) No 1924/2006 requires that for comparative nutrition claims, the difference in the quantity of the nutrient or energy value be stated. This requires the calculation of a typical nutrient and/ or energy value for the category upon which to base the comparison.

Once the product list and accompanying nutrient and/or energy information for the category sample has been obtained (see sections 4.2 to 4.4), it is recommended that the data set is first sensechecked for:

  • Typical nutrient contents across all nutrients. Ensure products are broadly similar from a nutritional perspective (see section 4.2.2).
  • Typical content of the nutrient that is the subject of the claim. For example, in some categories the level of the nutrient that is the subject of the comparative claim may be consistently low. For example, if the majority of products in a category are consistently low in fat, it is unlikely to be appropriate to make a reduced fat claim against this category, even if a 30% reduction were achieved.
  • The variation within the data set. For example, where the nutrient content range within the data set is wide or where there are outliers, the calculation may result in a skewed or misleading average value and therefore the reduction or increase from the average value may not be reflective of the market place. In cases of very wide variation, one method would be to apply standard deviations from the mean to indicate the level of confidence in the calculated value. This will provide an extra level of confidence that there is a significant difference between the nutrient content value of the comparative nutrition claim product and the majority of the rest of the market.

The average nutrient/energy value should be calculated as the numerical mean value, and it is not advised to calculate a weighted mean. This is because the data already reflects common purchasing and consumption patterns since the sample contains products in the largest volume in the category and the category is well-represented (see sections 4.2 to 4.4).

Regulation (EC) No 1924/2006 Article 9(2) states that “Comparative nutrition claims shall compare the composition of the food in question with a range of foods of the same category, which do not have a composition which allows them to bear a claim, including foods of other brands.” Taking this into account, the two flow diagrams provide stepby- step methods for the calculation of reduced and increased claims.

Next page: 5. Claim and qualifying text

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1. FAO/Infoods Density Database, McCance and Widdowson are examples of authoritative reference points on this topic