Background
Summary of Council decision:
Two issues were investigated, both of which were Not upheld.
Ad description
A poster for Floradix liquid iron and vitamin formula stated "TIRED OF BEING TIRED? ... Floradix with iron to help reduce tiredness and fatigue".
Issue
The complainant challenged whether the claim:
1. "... with iron to help reduce tiredness and fatigue" was an authorised health claim in the EU Register of Nutrition and Health Claims for Foods (the EU Register); and,
2. "TIRED OF BEING TIRED?" was a general health claim accompanied by a specific authorised health claim as required by the Code.
Response
1. Salus (UK) Ltd said that Floradix contained 15 mg of iron per 20 ml as a daily dose, which they said was 107% of the Recommended Daily Amount (RDA). They said the minimum legal amount that allowed a product to be labelled as a source of iron was 15% of RDA. They said the claim "Iron contributes to the reduction of tiredness and fatigue" ("the authorised claim") was evaluated positively by the European Food Safety Authority (EFSA), approved by the European Commission and published in the EU directive EC/432/2012, establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children's development and health. They said a small modification of EU Commission's approved wording was acceptable and on that basis the deviation, or flexing, of the wording from "contribute" to "help" was acceptable because it adhered closely to the authorised claim. On this point they referred to the Department of Health's guidance document "General principles on flexibility of wording for health claims" which they said supported the flexing of the wording of the authorised claim.
2. Salus said, in relation to the text "Tired of being tired?", had not referred to a health claim, because it was phrased as a question which was answered by the claim "... with iron to help reduce tiredness and fatigue".
Assessment
1. Not upheld
The ASA noted that according to EU Regulation 1924/2006 on Nutrition and Health Claims (the Regulation), which was reflected in the CAP Code, only health claims listed as authorised on the EU Register were permitted in marketing communications.
We understood that the product met and exceeded the minimum conditions of use for iron and therefore Floradix could bear the authorised health claim for iron "iron contributes to the reduction of tiredness and fatigue".
We also understood that marketers could exercise some flexibility in rewording authorised 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. We noted that the Department of Health's guidance referenced by Salus warned that when adapting the wording of an authorised claim, advertisers should take care not to make the claim 'stronger' than the authorised claim. We noted that the CAP Code, which reflected the requirements of the Regulation, stated that health claims "must be presented clearly and without exaggeration" and those claims should "have the same meaning" as those listed on the Register.
We therefore considered whether the flexing of the wording from "iron contributes to the reduction of tiredness and fatigue" to "with iron to help reduce tiredness and fatigue" would change or exaggerate the meaning of the authorised claim. We considered the wording 'with iron to help reduce' would have the same meaning for consumers as 'iron contributes to the reduction of', and we therefore considered the revision was appropriate and did not exaggerate the authorised health claim. On that basis we concluded the claim did not breach the Code.
On this point we investigated the claim under 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.
nd
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 and nutrition claims) but did not find it in breach.
2. Not upheld
We acknowledged Salus' assertion that the text "Tired of being tired?" was not a health claim. However, although we noted the claim was phrased as a query, and framed as a negative, we considered that in the context of the ad as a whole, consumers would interpret it to mean that the product would be 'good for tiredness'. We considered the claim therefore related to general health and well-being, without specifically referencing the substance which conferred that general benefit. We therefore considered the claim was a general health claim which fell under the provisions of Code rule 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. which allowed references to general, non-specific health benefits to be made, but only if those claims were accompanied by an authorised health claim.
We noted the ad included the claim "with iron to help reduce tiredness and fatigue", which as referenced above, we considered was an acceptable adaptation of the authorised health claim "iron contributes to the reduction of tiredness and fatigue". We concluded that, because the general health claim "Tired of being tired?" was accompanied by a specific authorised health claim, the claim did not breach the Code.
On this point we investigated the claim under CAP Code (Edition 12) rule 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. (Food, food supplements and associated health and nutrition claims) but did not find it in breach.
Action
No further action necessary.
