Background
Two issues were investigated both of which were Upheld.
Ad description
Claims on a website for a drink, seen on www.aspiredrink.co.uk on 17 August 2011, stated "Aspire is an enticing, lightly carbonated cranberry flavoured soft drink containing natural ingredients which create a thermogenic reaction, increasing your metabolism helping you to burn calories. Aspire has been tested by a leading British laboratory and is proven to burn on average over 200 calories per can".
Under the heading "About Aspire" further text that stated, "A great tasting, refreshing soft drink, that can also burn calories? Sometimes too good, can be true ... Aspire is a revolution, it is the first calorie burning soft drink to be launched in the UK and is tested and proven to burn on average over 200 calories (Kcals) per can by a leading British Laboratory".
Under the heading "The Science" further text stated, "It really works ... Aspire contains a combination of the following natural ingredients ... Guarana Extract - raises your bodies [sic] metabolism and suppresses appetite ... Green Tea Extract - boosts the bodies [sic] metabolism and accelerates weight loss ... L-Carnitine - plays a vital role in the oxidisation of fat and is an aid to weight loss".
Under the heading "Scientific Proof" text stated "The test was undertaken by the laboratory at [a University]. The laboratory utilise [sic] a selection of participant [sic] ... The amount of calories burnt was recorded over a 3 hour period after the consumption of 1 can of Aspire. The subjects were at a resting state during the test so we could achieve a result that represented the amount of calories Aspire burnt without any exercise. Burns on average, over 200 Calories (Kcals) per can. The conclusion of the test was that Aspire burnt a vast amount of calories in every subject. With a staggering average of 209 calories (Kcals) per can across the board, without increasing the individuals [sic] heart rate”.
Issue
1. The complainant, who did not believe the claims to "burn on average 200 calories per can" could be substantiated, challenged whether they were misleading.
2. The ASA challenged whether the claims to raise metabolism, accelerate weight loss and oxidise fat for the ingredients Guarana extract, Green Tea extract, and L-Carnitine, were exaggerated, misleading and could be substantiated.
Response
1. Fahrenheit60 Ltd (Fahrenheit60) said they had tested the product on the public. They submitted a research report conducted by a university that investigated the thermogenic effects of ingesting 250 ml of Aspire on total energy expenditure, and the contribution of carbohydrate and fat to energy expenditure, during 180 minutes of rest in comparison to a placebo, in 20 participants. They also submitted a letter from a local Trading Standards department. They believed these documents demonstrated that the product burned, on average, 209 kcal per can within a three hour timeframe.
2. They said the product consisted of Guarana extract, Green tea extract and L-Carnitine and provided links to pages from an online encyclopaedia detailing these ingredients. They said the claim that the product could raise metabolism had been substantiated by the research report and its references to energy expenditure. They also said Green tea contained epigallocatechin gallate (EPCG) which had been shown to enhance the thermogenic potential of caffeine and that caffeine had been shown to be effective in enhancing lipolysis, fat oxidation and reducing glycogen breakdown. They also said Guarana had been anecdotally associated with increased energy expenditure through the breakdown of fat stores as it contained caffeine and the amino acid carnitine played several metabolic roles, the most well documented being the translocation of long-chain fatty acids into the mitochondrial matrix for subsequent oxidation. They referred to the letter from Trading Standards, a letter from the author of the research report and a page from the report that related to heart rate which they believed supported the claims.
Assessment
1. Upheld
The ASA noted the test results were obtained by monitoring 20 fit and healthy subjects, between 19 and 26 years-of-age, using a respiratory gas analysis system over 180 minutes after the drink and a placebo were consumed, and that each test was performed one week apart at the same time of day following an overnight fast and a standardised breakfast four hours beforehand. We also noted the placebo consisted of the same ingredients as the product but without several ingredients, including Guarana, Green Tea extract, and L-Carnitine and that the results indicated that overall, there was a positive change in energy expenditure following the consumption of Aspire, whereas there was a trend for a negative change in energy expenditure following consumption of the placebo. However, we also noted the conclusion stated that acute consumption of the product significantly increased resting energy expenditure by 0.15 kcal per minute, when compared with a placebo during the 180 test period. We also noted from the author of the research report that, while 200 calories could be burned as a whole over 180 minutes, this should not be interpreted as an additional burn above that of the placebo.
We considered that most readers would understand the claim "burn on average 200 calories per can" to mean that, by consuming a can of the product under normal, everyday circumstances, they could burn, on average, an additional 200 calories over their usual energy expenditure. Because this was not the case, we considered that the claim "burn on average 200 calories per can" had not been substantiated. We also noted only 20 participants of a limited age range tested the product and considered this did not provide the rigorous trials required to support claims for the effectiveness of a weight-reduction product. We considered the references to calorie output had been exaggerated and concluded that they were misleading and had breached the Code.
On this point the ad breached CAP Code (Edition 12) rule 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration), 13.1 13.1 A weight-reduction regime in which the intake of energy is lower than its output is the most common self-treatment for achieving weight reduction. Any claim made for the effectiveness or action of a weight-reduction method or product must be backed, if applicable, by rigorous trials on people; testimonials that are not supported by trials do not constitute substantiation. (Weight control and slimming), and 15.1 15.1 Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Claims must be presented clearly and without exaggeration. (Food, food supplements and associated health and nutrition claims).
2. Upheld
We noted the ad claimed that the drink contained the ingredients Guarana extract, Green Tea extract, and L-Carnitine and that the advertiser said the research report demonstrated that those ingredients increased metabolism and accelerated weight loss, which in turn, resulted in energy expenditure. We considered that the claim regarding an average burn of 200 calories per can consumed, when read together with the statements about raising metabolism, creating a thermogenic reaction, helping burn calories, and accelerating weight loss, would cause consumers to believe they would burn 200 calories as a result of consuming the Aspire drink rather than the placebo. We also understood that the majority of the calories burned in the test were the result of normal metabolism, unconnected with the consumption of the product. We considered that, because the claims that related to raising metabolism, accelerating weight loss and the oxidisation of fat had not substantiated, they exaggerated the potential effects of the drink. We concluded that they were misleading and breached the Code.
On this point the ad breached CAP Code (Edition 12) rule 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration), 13.1 13.1 A weight-reduction regime in which the intake of energy is lower than its output is the most common self-treatment for achieving weight reduction. Any claim made for the effectiveness or action of a weight-reduction method or product must be backed, if applicable, by rigorous trials on people; testimonials that are not supported by trials do not constitute substantiation. (Weight control and slimming), and 15.1 15.1 Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Claims must be presented clearly and without exaggeration. (Food, food supplements and associated health and nutrition claims).
Action
The ad must not appear again in its current form. We told Fahrenheit60 not to make claims that the product could burn, on average, 200 calories per can, raise metabolism, accelerate weight loss and oxidise fat in future.
