Background
Summary of Council decision:
Two issues were investigated both of which were upheld.
Ad description
A TV ad, that also appeared on the advertiser's YouTube channel, for MaxiNutrition proteins:
a. The TV ad showed people taking part in various sports, including: boxing, swimming, rugby and cycling. The voice-over stated, "Sometimes you need to dig deep. During hard exercise, breakdown happens deep inside your muscle fibres." The voice-over was accompanied by an animation that depicted a muscle inside a boxer's arm. The fibres in the muscle were shown to break down before reverting to their original form. The voice-over continued, "MaxiNutrition helps provide your muscles with the proteins they need to recover, helping make you stronger and perform better. MaxiNutrition proteins aid muscle recovery. MaxiNutrition. You, stronger."
b. An ad with the same content appeared on the advertiser's YouTube channel.
Issue
The complainant challenged the following claims, which were health claims that needed to be authorised on the EU Register:
1. "MaxiNutrition helps provide your muscles with the proteins they need to recover, helping make you stronger and perform better"; and
2. "MaxiNutrition proteins aid muscle recovery".
Response
GlaxoSmithKline UK Ltd t/a MaxiNutrition said that two health claims for protein had been authorised by the EU, after a scientific assessment undertaken by the European Food Safety Authority (EFSA). They said the EU Register included approved claims that "Protein contributes to a growth in muscle mass" and "Protein contributes to the maintenance of muscle mass". They believed that the references to 'muscle recovery' and 'aid muscle recovery' in relation to protein, accurately expressed the health relationship within the approved health claims. They said EFSA Opinions also associated muscle maintenance and recovery as expressions of the same health benefit as the growth or maintenance of muscle mass.
MaxiNutrition confirmed that all products in their range did not contain protein. They said that those products that contained added protein, contained sufficient quantities of protein to permit the authorised health claims "Protein contributes to a growth in muscle mass" and "Protein contributes to the maintenance of muscle mass". They believed that if consumers understood the claims in the ads related to any protein-containing MaxiNutrition product rather than the products shown in the ad, it would be inconsequential, because those products contained sufficient quantities of protein to permit the authorised health claims.
MaxiNutrition believed the claim 'helps make you stronger and perform better' was a statement of fact that would be understood by the audience and not likely to mislead a consumer.
MaxiNutrition said the animation of the muscle fibre in the boxer's arm informed consumers about the cycle that active muscles went through during and post-exercise and, which they believed reinforced the relevance of protein for muscle growth and maintenance.
MaxiNutrition said the voice-over in the ad stated "MaxiNutrition helps provide your muscles with the proteins they need to recover ... " before stating "MaxiNutrition proteins aid muscle recovery". In the overall context of the ad, they believed it was clear to the average consumer that the protein in the product provided the attributes of protein.
Clearcast said the Register included approved claims that "Protein contributes to a growth in muscle mass" and "Protein contributes to the maintenance of muscle mass". They considered the claims that MaxiNutrition helped support muscle recovery had the same meaning as the claim "Protein contributes to the maintenance of muscle mass" and therefore believed the ad was compliant with the Code.
Assessment
THIS ADJUDICATION REPLACES THAT PUBLISHED ON 16 JULY 2014. THE WORDING HAS BEEN CHANGED BUT THE DECISION TO UPHOLD REMAINS.
1. & 2. Upheld
The ASA noted that under EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation) only health claims which appeared on the list of authorised health claims (the EU Register) could be made in ads promoting foods and that marketers must also ensure that they met the conditions of use associated with the claims in question.
We understood that the products shown in the ads contained sufficient quantities of protein and it was permitted to use the two authorised health claims relating to protein in respect of those products. We also understood that those products in the MaxiNutrition range that contained added protein, contained sufficient quantities of protein to permit those claims. We acknowledged the ads included references to proteins, such as "MaxiNutrition helps provide your muscles with the proteins ..." and "MaxiNutrition proteins". However, the ads did not specify the products to which the claims applied and made general references to MaxiNutrition, such as "MaxiNutrition helps provide" and "MaxiNutrition. You, stronger". In that context, we considered consumers would understand the claims in the ads related to the MaxiNutrition range as a whole. However, we understood that in addition to protein-containing products, MaxiNutrition sold a range of products providing other nutrients, some of which did not contain protein. Those products were therefore not permitted to use the two authorised health claims relating to protein.
We noted that the submission to EFSA identified that one of the claimed effects was that protein affected "muscle maintenance and recovery". However, the two relevant authorised claims that appeared on the EU Register, and which MaxiNutrition believed supported the claims, were, "Protein contributes to a growth in muscle mass" and "Protein contributes to the maintenance of muscle mass". We noted that the claims "helps provide your muscles with the proteins they need to recover, helping make you stronger and perform better" and "proteins aid muscle recovery" did not appear on the list of authorised health claims in respect of protein.
The Regulation allowed for a degree of flexibility in the wording used and that claims did not have to be worded exactly as they were on the EU Register, provided that the reworded claim was likely to have the same meaning for consumers as that of the relevant authorised health claim. EU guidance, reflected in the terms and conditions of the EU Register, made clear that flexibility of wording was possible provided that the aim of the rewording was to aid consumer understanding, taking into account factors such as linguistic or cultural variations and the target population.
The ads depicted individuals participating in strenuous physical exercise. The ads showed a trainer encouraging a boxer to "dig" and "come on, give it everything you got" [sic] and a cyclist with a grimace on his face whilst racing up hill. A voice-over stated, "Sometimes you need to dig deep. During hard exercise, breakdown happens deep inside your muscle fibres." The voice-over was accompanied by an animation that depicted a muscle inside a boxer's arm. The fibres in the muscle were shown to break down before reverting to their original form. After the animation, the cyclist was shown to overtake a competitor; the swimmer appeared to touch the wall ahead of her competitor; and the rugby player was shown to score a try. An accompanying voice-over stated "MaxiNutrition ... helping make you stronger and perform better." The voice-over at the end of the ads stated, "MaxiNutrition. You, stronger" and that was echoed in on-screen text.
We considered the overall impression of the ads was that MaxiNutrition prevented muscle breakdown during a session of hard exercise and allowed users to achieve optimum performance. We understood the authorised claims ‘Protein contributes to a growth in muscle mass’ and ‘Protein contributes to the maintenance of muscle mass’ related to increasing muscle mass and maintaining it; rather than repair during hard exercise or recovery after it. In addition, we considered that, in conjunction with visuals showing muscle repair and successful performance, the additional text ‘helping make you stronger and perform better’ exaggerated the benefit of the advertised product as it implied the product could prevent and/or repair the muscle breakdown caused by hard execise to achieve optimum performance.
We therefore considered the reworded claims were not likely to have the same meaning for consumers as that of the authorised health claims.
We acknowledged the voice-over in the ad stated, "MaxiNutrition helps provide your muscles with the proteins they need to recover ..." before stating "MaxiNutrition proteins aid muscle recovery". However, we considered the presentation of the claim "MaxiNutrition proteins aid muscle recovery" attributed muscle recovery to the product alone, rather than to protein in general.
For the reasons given, we considered the claims "MaxiNutrition proteins aid muscle recovery" and "MaxiNutrition helps provide your muscles with the proteins they need to recover, helping make you stronger and perform better" were not likely to have the same meaning for consumers as that of the authorised health claims and that the ads exaggerated the health benefit of the product.
On that basis, we concluded that the ads breached the Code.
Ad (a) breached BCAP Code rules
13.4
13.4
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) are permitted in advertisements.
Only health claims listed as authorised in the EU Register or claims that would have the same meaning for the audience may be used in advertisements:
www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
13.4.2
13.4.2
Advertisements 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. Advertisements must not give a misleading impression of the nutrition or health benefits of the product as a whole and factual nutrition statements should not imply a nutrition or health claim that cannot be supported. Claims must be presented clearly and without exaggeration
and
13.7.1
13.7.1
Nutrition and health claims for food supplements must be permitted or authorised as provided for at rule
13.4
13.4
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) are permitted in advertisements.
Only health claims listed as authorised in the EU Register or claims that would have the same meaning for the audience may be used in advertisements:
www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
above. Advertisements 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 by the EU Register.
(Food, food supplements and associated health or nutrition claims) and ad (b) breached CAP Code (Edition 12) rules
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.
15.1.1
15.1.1
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
and
15.7
15.7
Nutrition and health claims for food supplements must be permitted or authorised as provided for at rule 15.1.1 above. 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.
(Food, food supplements and associated health or nutrition claims).
Action
The ads must not appear again in their current format. We told GlaxoSmithKline UK Ltd to ensure that they retained the meaning of any authorised health claims if they reworded them to aid consumer understanding. We also told GlaxoSmithKline UK Ltd to ensure future ads did not exaggerate the health benefits of a product.
