Ad description
A magazine ad for ‘Blue Berry Eyebright plus’ food supplements pictured a woman wearing glasses and large text which stated “BLUE BERRY - THE ORIGINAL SWEDISH EYE TABLET” and “NOW I CAN SEE AND READ MY MAGAZINES!” Further text stated “When you age you may, as many others, find that it becomes more difficult to read and see things clearly, maybe you will need reading glasses. These changes in eyesight often give cause for concern and make many start taking the Blue Berry tablet in order to preserve healthy eyes and your normal eyesight” and included a testimonial which stated “Unfortunately my eyes started to give me problems and it became difficult reading in bed. I started taking the Blue Berry tablets and now I enjoy once more relaxing with a magazine” and “… when I could no longer read my magazine in bed, I decided to start taking Blue Berry tablets … I am now able to read my magazine. It seems that I can also see better the numbers on the TV screen”. Text under the heading “Why take Blue Berry Eyebright?” stated “Most people like to start taking Blue Berry tablets when they feel that their eyesight is beginning to change. There is nothing hindering you starting earlier as a precaution”. Text at the end of the ad stated “… it is a high quality blueberry tablet with eyebright, natural lutein and Eye-vitamin A. Vitamin A helps maintain a normal eyesight.”
Issue
The complainant challenged whether the claims that implied the product improved vision complied with the requirements of EC Regulation 1924/2006 on nutrition and health claims made on foods (the Regulation), which was reflected in the CAP Code.
Response
New Nordic Ltd said the claim “Vitamin A contributes to the maintenance of normal vision” was authorised on the EU Register for vitamin A. They said the product contained 400mg (per daily dose) of vitamin A which met the requirements for the authorised claim. They said they also used claims for blueberry and eyebright which were classed as ‘on hold’ and referred to two specific claims. They provided studies in support of those claims, which they believed could be substantiated. They said that the ad did not explicitly claim that the product could improve vision, but that they understood the testimonial could be understood in that way and that they would make adjustments to the ad in future.
Assessment
Upheld
The ASA noted that under the Regulation, which was reflected in the CAP Code, 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. Health claims must be presented clearly and without exaggeration. The CAP Code defined a health claim as any claim that stated, suggested or implied that a relationship existed between a food category, a food or one of its constituents and health.
We considered that the references in the ad to improved vision, such as “NOW I CAN SEE AND READ MY MAGAZINES!”, “These changes in eyesight often give cause for concern and make many start taking the Blue Berry tablet in order to preserve healthy eyes and your normal eyesight”, “Unfortunately my eyes started to give me problems and it became difficult reading in bed. I started taking the Blue Berry tablets and now I enjoy once more relaxing with a magazine”, “… when I could no longer read my magazine in bed, I decided to start taking Blue Berry tablets … I am now able to read my magazine. It seems that I can also see better the numbers on the TV screen” and “Most people like to start taking Blue Berry tablets when they feel that their eyesight is beginning to change. There is nothing hindering you starting earlier as a precaution”, were health claims and were likely to be interpreted as suggesting a specific health benefit could result from consuming the product. They implied that the product could improve vision, and particularly vision which had been affected by age related changes, and we noted that the ad had appeared in a magazine targeted at older people.
The ad included the claim “Vitamin A helps maintain a normal eyesight”. We understood that “Vitamin A contributes to the maintenance of normal vision” was a health claim authorised on the EU Register. We noted marketers could exercise some flexibility in rewording claims, provided that the reworded claim was likely to have the same meaning for consumers as the authorised health claim and the aim of the rewording was to aid consumer understanding, and taking into account factors such as linguistic or cultural variations and the target population. We considered that the claim in the ad would be understood by consumers to have the same meaning as the authorised claim and that the rewording was therefore acceptable. We also understood that the product contained sufficient vitamin A to make that claim and therefore considered that specific claim did not breach the Code.
We understood that a claim had been submitted to the European Food Safety Authority (EFSA) for Euphrasia officinalis (eyebright) with the wording “for maintaining the functions of vision and retina” and that the claim was currently listed as 'on hold' in a list of botanical substances. ‘On hold’ claims for such botanicals could be used in marketing, provided such use had the same meaning as the proposed claim and they were used in compliance with applicable existing national provisions (in this case the CAP Code), which meant that the claims needed to be substantiated by robust evidence. Such claims were still under consideration by EFSA and may or may not be approved in future. We noted that, as with health claims authorised on the EU Register, marketers could exercise some flexibility with wording of ‘on hold’ claims. However, we did not consider that the claims in the ad would have the same meaning to consumers as the claim submitted to EFSA. In particular, we considered that the claims in the ad went beyond claiming that the product could maintain the functions of vision and the retina, and instead implied that the product could improve vision. We therefore considered the claims in the ad exaggerated the health claim submitted to EFSA.
We understood that although the ad referred to “blue berry” the product actually contained Vaccinium myrtillus, which was an extract from what is known in the UK as bilberry rather than blueberry, but is known in many other European languages as ‘blueberry’. A claim had been submitted to EFSA for the fruit of Vaccinium myrtillus (which we understood the product contained) with the wording "Supports visual clarity, Supports retinal function, Maintains eye health, Supports blood flow to the eye, Well known source of antioxidants, Natural defense against free radicals, Provides antioxidant support for the eyes, Helps protect eyes". The claim was also listed as ‘on hold’. However, we did not consider that the claims in the ad would have the same meaning to consumers as the claim submitted to EFSA. In particular, we considered that the claims in the ad went beyond the various elements of the ‘on hold’ claim, and instead implied that the product could improve vision. We therefore considered the claims in the ad exaggerated the health claim submitted to EFSA.
New Nordic had also provided us with documentary evidence which they believed substantiated the ‘on hold’ claims and those in the ad. In relation to bilberry they provided five studies. The first study was a published review of studies relating to bilberry extract and night vision. However, we did not consider it was relevant to the claims in the ad which did not make reference to night vision, and we also noted that the study concluded that the hypothesis bilberry could improve normal night vision was not supported by evidence from rigorous clinical studies. The second study was a randomised controlled trial (RCT) on Japanese subjects aged 31 to 53 years with myopia (short-sightedness), which we considered was of limited relevance to the ad which focused on an older population and contained claims more relevant to long- rather than short-sightedness. We also noted that the bilberry extract they took was fermented, which did not appear to be the case for the advertised product. In addition, of the seven vision measures taken, none of the changes seen appeared to be statistically significant compared to the placebo. The third study related to cataracts, which were not mentioned in the ad, and was conducted on rats only. The fourth study was a published RCT carried out on 60 Korean subjects. The average ages for the placebo and active groups were 36 years and 41 years respectively, which we considered was of limited relevance to the population targetted in the ad. We also noted that the active tablet contained 85% anthocyanoside oligomer, which the study explained was extracted from bilberry and was thought to be the most active component. We understood that the advertised product contained bilberry extract, rather than this specific concentrated extract. The study also concentrated on myopia and nocturnal vision which again were not referenced in the ad. The fifth study was carried out on mice only and related to retinal inflammation and was therefore not relevant to the claims in the ad.
In relation to eyebright, New Nordic had provided four studies. The first study was a published review of studies which looked at a number of therapies, including eyebright. However, it focused on the treatment of ocular allergies and was therefore not relevant to the claims in the ad. The second study was also not relevant to the claims in the ad because it focused on the treatment of health problems in livestock only. The third study related to in vitro testing and focused on the use of eyebright to treat eye disorders such as conjunctivitis and ocular allergies and was therefore not relevant to the ad. The fourth study was similarly not relevant to the claims in the ad because it focused on the treatment of conjunctivitis. They had also provided three brief extracts from books, which detailed what eyebright should be used for, but we did not consider that they constituted evidence for the claims. Overall, we did not consider the body of evidence was sufficiently robust to substantiate the claims in the ad.
We were also concerned that a number of the claims could be interpreted as implying that the product could prevent or treat human disease (in this case age related vision degeneration), which were prohibited for food supplements.
Because the claims in the ad exaggerated the claims submitted to EFSA and had not been substantiated, and because we were concerned that the claims could be interpreted as preventing or treating disease, we concluded that the ad breached the Code.
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.
and
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 or 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).
Action
The ad must not appear again in its current form. We told New Nordic not to state or imply that Blue Berry Eyebright plus could improve vision or to make any eye related health claims for the product, apart from health claims authorised on the EU Register. We also told them to ensure that they did not imply that the product could prevent or treat human disease.
