Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A website, http://quinton-water.com, for a sea-water solution, featured a range of pages describing the products available and their efficacy.
Claims for the product “Quinton Isotonic” included a range of health claims, including the product name, and that it: had anti-inflammatory and calming properties; could boost the immune system; maintained a healthy digestive tract, so encouraging "friendly" bacteria and helping repair the gut lining; improved the health of developing eggs and sperm, so increasing the chances of conception and the strength and health of babies; caused better sleep patterns and sleep quality; could detoxify and boost the body; and could help the body "regain optimum mineral balance to maintain health". Further claims, that the product could reduce the risk factors of disease, included "Red Blood Cells become less sticky and stop forming into stacks called rouleaux. RBC rouleaux is one of the high risk factors for retinal degeneration in diabetics". The website also included claims that the product could prevent, treat or cure disease, including that it could: reduce allergic reactions; reduce anxiety; support the respiratory system in people with conditions such as asthma and hayfever; alleviate the symptoms of stomach and bowel diseases such as IBS and ulcers; cause insomnia and chronic fatigue to disappear; eradicate blood-borne infections; and cause significant improvements in children with autism.
Claims for the product “Quinton Hypertonic” included a range of health claims, including the product name, and that it could: enhance mental focus and alertness; boost the immune system; counteract the dehydration and "mineral excretion" caused by alcohol consumption; help the body maintain maximum hydration and performance during exercise; and replace minerals lost from the body "during stress". The website also included claims that the product could prevent, treat or cure disease, including that it could help people with depression and infections.
Claims relating to the use of both the Isotonic and Hypertonic products included: health claims that they helped regulate metabolism and stabilised and regulated blood sugar; and claims to prevent, treat or cure disease, including that they were beneficial for gingivitis, tonsillitis, mouth ulcers, dental caries, hypothyroidism and hyperthyroidism.
Claims for the efficacy of the product “Quinton Ocular Spray” included "Disturbances in mineral balance and loss of anti-oxidants allow degenerative changes and reduce resistance to ocular infections. Quinton Ocular replaces and balances minerals and anti-oxidants within the eye", and that the product was beneficial for treating allergies, conjunctivitis, blepharitis, chalazion, scleritis, keratoconjunctivitis and sties.
Claims for the efficacy of ”Quinton Nasal Sprays” included that the products supported the local immune system, had anti-inflammatory properties, treated bacterial, fungal and viral infections within the nose and sinuses, prevented infection and allergies, reduced a risk factor in Asthma, and could help the conditions rhinopharyngitis, allergic rhinitis, obstructive sinusitis, ozena, colds and influenza.
Claims for the efficacy of ”Quinton Dermo Spray” included that the product helped treat sunburn, nappy rash, premature ageing, cuts, grazes, psoriasis, eczema, acne and seborrheic dermatitis.
Issue
1. The complainant challenged the claims for Quinton Isotonic and Quinton Hypertonic, which included health claims which were required to be authorised on the EU Register, and claims to prevent, treat or cure disease, which were prohibited.
2. The complainant also challenged whether the efficacy claims for the Quinton Nasal Sprays, Ocular Spray and Dermo Spray were misleading and could be substantiated.
Response
1. & 2. Original Quinton UK Ltd said that Quinton marine plasma had a long track record in helping millions of people all over the world. They said that some of the largest clinical studies ever published, following thousands of patients over decades, related to Quinton marine plasma, and said that eminent doctors and professors had provided testimonials for its effects. They said no claims were made for Quinton marine plasma directly in terms of treatment; all recovery claims were made in terms of how the body recovered itself when properly supported.
Assessment
1. Upheld
The ASA understood that Quinton Isotonic and Quinton Hypertonic were foods. Ads for foods were subject to specific rules in the CAP Code, which reflected the requirements of EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation).
The CAP Code required that only health claims which appeared on the list of authorised claims (the EU Register) could be made in ads promoting foods. 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. The ad included a range of health claims including those identified above, such as that the products had anti-inflammatory properties, could boost the immune system, increase the chances of conception, enhance mental focus, help the body maintain maximum hydration and performance during exercise and help to regulate metabolism. We also considered that the product names "Isotonic" and "Hypertonic" implied that a relationship existed between the food and health and as such the product names were also health claims.
The Code further specifically required that health claims which referred to children's development and health, such as the claim in the ad "By providing the correct balance of nutrients and trace minerals from the outset, brain and nerve development is optimised which is demonstrated by faster learning, more advanced motor skills, better co-ordination and stronger, healthier babies and children", must also be authorised by the EC Regulation.
Original Quinton had not provided any evidence that any of the health claims in its advertising were authorised on the EU Register, either in relation to the products as a whole or to marine plasma specifically. We concluded the health claims were in breach of the Code.
The Code required that claims that a food could reduce a risk factor in disease must also be authorised on the EU Register. We considered that in the context of other claims on the website, the claim "Red Blood Cells become less sticky and stop forming into stacks called rouleaux. RBC rouleaux is one of the high risk factors for retinal degeneration in diabetics" would be understood by consumers to mean that consuming Quinton Isotonic and Hypertonic could reduce a risk factor in diabetes. Original Quinton had not provided any evidence that the claim was authorised on the EU Register and we therefore concluded the reduction of disease risk claim was in breach of the Code.
The ad also included references to general, non-specific health benefits of the products such as "boost the body". The Code stated that such claims could be made in relation to a food, but only if they were accompanied by a specific, authorised health claim. Because we understood that none of the specific health claims in the ad were authorised, we concluded the general health claims were therefore also in breach of the Code.
The ad also included references to a range of diseases and conditions, including allergies, asthma, hayfever, IBS, ulcers, autism, depression, infections, gingivitis, tonsillitis, mouth ulcers, dental caries, hypothyroidism and hyperthyroidism. We considered consumers would, in the context of the website, understand those references to mean that the Quinton Isotonic and Hypertonic products could prevent, treat or cure those diseases and conditions. Because such claims were prohibited under the Code, we concluded the ad was also in breach of the Code in that regard.
On this point, 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.
15.2
15.2
References to general benefits of a nutrient or food for overall good health or health-related well-being are acceptable only if accompanied by a specific authorised health claim.
15.6
15.6
These are not acceptable in marketing communications for products within the remit of this section:
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
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.
and
15.17
15.17
Claims referring to children's development and health are acceptable if authorised by the European Commission.
(Food, food supplements and associated health or nutritional claims).
2. Upheld
We considered consumers would understand the claims identified above in relation to the Quinton Nasal Sprays, Ocular Spray and Dermo Spray as efficacy claims that the products could prevent, treat and cure medical conditions. Such claims must be supported by adequate substantiation. Original Quinton had referenced clinical studies and testimonials by medical professionals, but had not provided any documentary evidence in support of the claims. In the absence of evidence, we concluded the claims had not been substantiated and were therefore misleading.
On this point, 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) 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 Original Quinton UK Ltd they should not use unauthorised health or reduction of disease risk claims in relation to their foods, and that they should not refer to general, non-specific health benefits of their food products unless those claims were accompanied by an authorised claim. We told them not to make stated or implied claims that their food products could prevent, treat or cure human diseases. We also told them not to make efficacy claims for their other products unless they held robust substantiation.
CAP Code (Edition 12)
12.1 15.1 15.1.1 15.17 15.2 15.6 15.6.2 15.7 3.1 3.7
