Ad description
Claims on a website selling health and sports accessorises, in April 2011, stated "Photonizer Bottle Cover ... Photonizer 4-14 is a revolutionary bottle cover, made using the exclusive Nexus fabric. Thanks to its constant natural emission of infrared rays, it has a beneficial effect on the properties of water and water-based liquids. The effect of the Photonizer 4-14 water bottle and flask cover on water and water-based liquids is very fast. Scientific studies demonstrate that the natural infrared emissions of Nexus fabric have an important effect on a litre of water just ten minutes from the moment the Photonizer is applied to the bottle. Liquids reach optimum and stable hydration levels at 30 minutes and these properties and maintained [sic]. When the Photonize [sic] is removed, it takes a further 30 minutes for liquids to return to their original state". Bullet-pointed text under the heading "Benefits of Photonizer 4-14" stated "Improves the hydration of the body during training, competition and recovery; Speeds up and optimises the absorption and digestibility of nutrients contained in supplements (for example, salts); Stimulates diuresis, resulting in a more rapid elimination of waste products; tough - resistant to knocks or abrasions; Weighs only a few grams".
Issue
The complainant challenged whether the following claims were misleading and could be substantiated:
1. "it has a beneficial effect on the properties of water and water-based liquids";
2. "The effect of the Photonizer 4-14 bottle and flask cover on water and water-based liquids is very fast";
3. "Benefits of Photonizer 4-14: Improves the hydration of the body during training, competition and recovery; Speeds up and optimises the absorption and digestibility of nutrients contained in supplements (for example, salts); Stimulates diuresis, resulting in more rapid elimination of waste products".
4. The ASA challenged whether the ad made a medicinal claim for an unlicensed product.
Response
Accapi UK LLP (Accapi) explained that Nexus energy source was a revolutionary product that had originally been developed in Japan. They said it had benefitted numerous athletes at Olympic and elite events, as well as many customers involved in sport, by improving blood flow during and after activity with the resultant benefits that promoted. They said customer testimonials supported those benefits. Accapi pointed out that they offered a 14-day money back guarantee to any customer who felt the product did not have a beneficial effect, and that they had had few claims under that guarantee. Accapi provided documentation in relation to the Nexus fabric in support of the claims.
Assessment
1. Upheld
The ASA noted the documentation provided by Accapi. We noted one of those documents was a discussion piece on the scientific principles behind the Nexus material and that another was a study that measured radiant emissions on samples of Nexus fabric, but that neither assessed the effect of Nexus fabric on water. We therefore considered they were not suitable to support the claim. We noted the final document was a summary of a study that assessed the effect of the characteristics of water when exposed to the Nexus material. Notwithstanding the fact that we had not seen the full methodology or results of the study, we noted that it did not assess whether any emissions produced by the Nexus fabric would be able to penetrate a water bottle or flask, and consequently whether any observed effect on water produced by the Nexus fabric would still occur when the fabric was not directly applied to water. Furthermore, we also noted the study did not assess whether any change in the properties of the water would have a beneficial effect. We considered that the study was not sufficiently robust to substantiate the claim that the product had a “beneficial effect on the properties of water and water-based liquids", and we therefore concluded that it was misleading.
On this point, the ad breached CAP Code (Edition 12) Code rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
2. Upheld
We noted the documentation provided, but also noted that they did not measure the speed with which the Photonizer 4-14 effected any beneficial changes in water. We therefore concluded that the claim had not been substantiated and was misleading.
On this point, the ad breached CAP Code (Edition 12) Code rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
3. Upheld
We noted that Accapi believed the claims relating to the benefits of the Photonizer 4-14 could be substantiated by testimonials from athletes and other customers. We considered, however, that customer testimonials were not sufficiently robust evidence to support the objective efficacy claims made in the ads. Because we had not seen robust scientific evidence to support those claims, we concluded that they were misleading.
On this point, the ad breached CAP Code (Edition 12) Code rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation), and
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
(Medicines, medical devices, health-related products and beauty products).
4. Upheld
We noted that Accapi had not confirmed that the Photonizer 4-14 had a marketing authorisation to make medicinal claims. We considered that the claim “Stimulates diuresis, resulting in more rapid elimination of waste products" was a medicinal claim that should not be made for unauthorised products. We therefore concluded that the ad breached the Code on this point.
On this point, the ad breached CAP Code (Edition 12) Code rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation), and
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
(Medicines, medical devices, health-related products and beauty products).
Action
The ad must not appear again in its current form. We told Accapi not to make claims for the beneficial effect of Photonizer 4-14 on water and people, or that the product worked very fast on water. We also told Accapi not to make medicinal claims for the product.
