Background
Summary of Council decision:
Four issues were investigated, all of which were Upheld.
Ad description
A leaflet for Joint Restorer capsules and gel showed a middle aged couple walking in the countryside. It was headed "Natural relief from Rheumatism, Arthritis, Joint and Muscle Pain". Text stated "Reverend Father David's JOINT RESTORER (TM) - Say goodbye to: Joint Pain - Rheumatism - Polyarthritis - Knee arthrosis - Sciatica - Arthrosis - Arthritis - Coxarthrosis - Back pain - Neck pain - Lumbago - No side effects - Soothing - Fortifying - Remineralising". The leaflet went on to make various claims about what the products contained and how they could provide relief from pain and treat the various conditions listed.
Issue
A complainant challenged:
1. whether the claims that the capsules prevented, treated or cured human disease were prohibited by the Code;
2. whether the reduction of disease risk claims made for the capsules were authorised on the EU Register of Nutrition and Health Claims Made on Foods (EU Register); and
3. whether the health claims made for the capsules were authorised on the EU Register.
4. The complainant also challenged whether the medicinal claims made for the gel were misleading and could be substantiated.
Response
1., 2., 3. and 4. Joint Restorer said the leaflet was old marketing copy that was not intended for the UK marketplace. They said they would make amendments to their advertising to ensure it complied with UK legislation before they distributed it again.
Assessment
1., 2. & 3. Upheld
The ASA welcomed Life Healthcare LLC t/a Joint Restorer's assurance but noted that we had previously resolved a complaint informally with Life Healthcare LLC on the basis that future ads would be amended to comply with UK legislation.
We noted that according to EU Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation), which was reflected in the CAP Code, only health claims and reduction of disease risk claims which appeared on the list of authorised health claims (the EU Register) could be made in ads promoting foods, including food supplements, and that health claims could only be made for the nutrient, substance, food or food category for which they had been authorised, and not for the product itself.
The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food, or ingredient, and health or reduced risk of disease. We considered the claims "remineralising" and "fortifies joints"; the claims for glucosamine "Strengthens joints and connective tissue" and "Rebuilds damaged cartilage", as well as the product name "Joint Restorer", and the various claims about what the products contained and how they could provide relief from pain and treat the conditions listed were health claims.
The Code defined reduction of disease risk claims as those that stated, suggested or implied that the consumption of a food or one of its constituents significantly reduced a risk factor in the development of a human disease. We considered the reference beneath the heading "Are you over 50?" to cartilage wearing down, "creating the perfect environment for agonising pain to set in" and "Warning! There's no time to lose YOU NEED TO ACT NOW!", followed by a list of "common joint conditions" such as arthritis and sciatica, was a reduction of disease risk claim, because it implied that the product could prevent cartilage wearing down and so reduce the risk of developing the stated joint conditions.
Because Joint Restorer had not supplied evidence that the health claims and reduction of disease claims were authorised on the EU Register or that Joint Restorer could treat, prevent or cure the diseases referred to in the ad, we concluded that the claims breached the Code.
We also considered that the heading "Natural relief from Rheumatism, Arthritis, Joint and Muscle Pain" and the claim "Say goodbye to: Joint Pain - Rheumatism - Polyarthritis - Knee arthrosis - Sciatica - Arthrosis - arthritis - Coxarthritis - Back pain - Neck pain - Lumbago" suggested that Joint Restorer could treat, prevent or cure disease. Because such claims were prohibited by the Code, we concluded that they were in breach.
On points 1., 2. and 3. the ad 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.
15.6.2
15.6.2
Claims that state or imply a food prevents, treats or cures human disease. Reduction-of disease-risk claims are acceptable if authorised by the European Commission
(Food, food supplements and associated health and nutrition claims) 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 supplements and other vitamins and minerals).
4. Upheld
Claims that a non-food product such as the gel could be used to treat or prevent a disease were classed by the Medicines and Healthcare products Regulatory Agency (MHRA) as medicinal claims and could only be made if an advertiser held a marketing authorisation for the product from the MHRA before marketing it to UK consumers. Because Joint Restorer had not shown that they held the relevant authorisation, we concluded that the claims for the gel also breached the Code.
On point 4. the ad breached CAP Code (Edition 12) 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),
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.
and
12.11
12.11
Medicines must have a licence from the MHRA, VMD or under the auspices of the EMA before they are marketed. Marketing communications for medicines must conform with the licence and the product's summary of product characteristics. For the avoidance of doubt, by conforming with the product's indicated use, a marketing communication would not breach rule 12.2.
Marketing communications must not suggest that a product is "special" or "different" because it has been granted a licence by the MHRA, VMD or under the auspices of the EMA.
(Medicines, medical devices, health-related products and beauty products).
Action
The ad must not appear again in its current form. We told Life Healthcare LLC t/a Joint Restorer to ensure they did not make unauthorised health or reduction of disease risk claims, or claims to prevent, treat or cure human disease, for foods or food supplements. We also told them not to make medicinal claims for which they did not hold the relevant marketing authorisation, or efficacy claims for which they did not hold adequate substantiation, for their non-food products.
CAP Code (Edition 12)
12.1 12.11 15.1 15.1.1 15.6.2 15.7 3.1 3.7
