Background
The ads appeared in September, October and November 2021, and we therefore assessed them under the Code rules interpreted in the light of changes in the background law resulting from the UK’s exit from the EU, as per CAP/BCAP’s statement on EU exit dated 22 December 2020.
Summary of Council decision:
Two issues were investigated, both of which were Upheld
Ad description
A website and a paid-for Facebook post for Brite Drinks:
a. The website www.britedrinks.com, seen on 6 September 2021, featured headline text stating “Natural nootropic drinks for better focus and productivity”. Smaller text underneath stated “Replace coffee and energy drinks with Brite to get more done”. Below that was text that stated “Boosts alertness & concentration”. Further text on the page stated “Made for mental performance: formulated specifically to boost alertness and concentration. Nootropic: science backed synergy of a stimulant 150mg caffeine and a relaxant 150mg L-theanine. No energy crash or jitters: a calm, longer lasting boost without energy spikes and crashes. Nutritious …. Organic matcha, guarana and guayusa are high in vitamins, minerals and antioxidants”. A section further down the page, titled “What makes Brite different”, included text that stated “Brite is based on the nootropic synergy of 150mg caffeine and 150mg L-theanine … to provide a long lasting productivity boost. Caffeine enhances cognition, mental endurance and mood, but it triggers adrenaline, anxious feelings and destroys the ability to focus. L-theanine is a relaxant that induces a calm state of mind and reduces the negative side effects of caffeine. Therefore stacking caffeine with L-theanine promotes optimal mental performance. Fiber [sic] found in the superfoods ensures a gradual and long lasting boost without energy spikes or crashes”. Underneath that was a section titled “Made with nootropic superfoods” and text that stated “Organic Guayusa tree leaves … Guayusa … boosts clarity of the mind … Guarana seeds Guarana has been used … as a natural stimulant for energy, stamina and strength … It improves vitality and stimulates the brain and nervous system. It is proven to improve mental alertness and provide a sustained energy release ...”.
b. The paid-for Facebook post, seen on 1 October and 2 November 2021, stated “Meet Brite, the world’s first productivity drink, or a more effective and nutritious alternative to coffee and energy drinks … Brite Drinks … and are powered by nootropic superfoods high in antioxidants, vitamins and minerals. The active ingredients work together in synergy to provide a noticeable boost in focus and productivity, without the negative side effects associated with energy drinks and coffee. Due to the fiber [sic] content, the boost is gradual and releases over a longer time period …”. Below that was an image of a person’s, arm holding a bottle of Brite. Superimposed text at the top of the image stated, “Coffee just wakes me up, but this makes me focused and productive”.
Issue
The ASA received three complaints.
1. Three complainants challenged whether the health claims in ads (a) and (b) complied with the Code; and
2. One complainant challenged whether the claims “Organic matcha, guarana and guayusa are high in vitamins [and] minerals” in ad (a), and “superfoods high in … vitamins and minerals” in ad (b), which were nutrition claims, complied with the Code.
Response
1. & 2. ARSJ Holdings Ltd t/a Brite Drinks (ARSJ) said they had removed the ad from Facebook.
They said there were “on hold” health claims that caffeine “increases alertness and concentration”. They provided a statement from a food manufacturing association that said “on hold general function” claims under Article 13.1 of the European Commission (EC) Regulation on nutrition and health claims could be used. The statement referred to a Department of Health and Social Care (DHSC) Bulletin from 2014 (Article 13(1) “on-hold” Health Claims Spreadsheet) explaining the conditions of use for “on hold” health claims, accompanying DHSC spreadsheet that listed the “on hold” health claims, and a draft EC Regulation Annex with proposed wording for caffeine health claims. ARSJ provided copies of the Bulletin, spreadsheet and draft Annex. They believed, because the caffeine claims were on hold, they were able to use them to support the general health claims “Get more done” and “Made for mental performance”. They were aware that there was a non-authorised health claim on the Great Britain nutrition and health claims Register (‘the GB NHC Register’) that caffeine helped to increase alertness. However, they said that was not relevant because it only related to intakes of caffeine between 40 mg and 75 mg per serving, and Brite Drinks contained more than 75 mg of caffeine per serving.
They said they would remove the other specific health claims from their website.
They said the claim “Organic matcha, guarana and guayusa are high in vitamins, minerals and antioxidants” referred to the high vitamin, mineral and antioxidant content of the ingredients, and not the product itself.
Assessment
1. Upheld
Only specific health claims authorised on the GB NHC Register could be made in ads promoting food or drink products. The Code defined health claims as those that stated, suggested or implied that a relationship existed between a food category, a food or one of its constituents and health. Any authorised health claims made in an ad must meet the associated conditions of use. “On hold” claims could be used in marketing, provided such use had the same meaning as the proposed wording of the claim and they were also compliant with applicable existing national provisions as set out in Regulation 1924/2006 on nutrition and health claims made on foods, which meant that the claims needed to be substantiated by evidence as required by the CAP Code. “On hold” claims were still under consideration by the UK government and devolved administrations. We understood they were currently developing the next steps on the approach to “on hold” claims for use in the GB market.
The ASA understood the term “nootropic” was used to describe substances which enhanced cognitive function. We considered that those consumers familiar with the term would understand the claim “nootropic” to mean that the advertised product would help with mental performance. Ad (a) stated “Organic matcha, guarana and guayusa are high in … antioxidants” and ad (b) stated “powered by nootropic superfoods high in antioxidants …”. We considered consumers would understand these claims to mean that because Brite Drinks included those substances, the drinks had antioxidant properties that were beneficial to health. We therefore considered the claims “nootropic” and “antioxidant” were specific health claims for the purposes of the Code.
Ad (a) stated that: caffeine and L-theanine “provide a long lasting productivity boost” and “promote optimal mental performance”; L-theanine “induces a calm state of mind and reduces the negative side effect of caffeine”; fibre “ensures a gradual and long lasting boost without energy spikes or crashes”; guayusa “boosts clarity of the mind”; and guarana “for energy, stamina, and strength”, “improves vitality and stimulates the brain and nervous system”, and “improve mental alertness and provide a sustained energy release”. We considered consumers would understand these claims to mean that because Brite Drinks contained the ingredients caffeine and L-theanine, fibre, guayusa and guarana, the drinks could help to: improve focus, productivity, alertness, concentration, mental performance, clarity of the mind, energy, stamina, strength and vitality; stimulate the brain and nervous system; and prevent energy spikes or crashes. We considered these were also specific health claims for the purposes of the Code. With regards to the claims about caffeine and L-theanine together (L-theanine, fibre, guayusa and guarana) we had not seen any evidence which demonstrated that any specific health claims were authorised on the GB NHC Register in relation to the referenced substances. Furthermore, some claims for L-theanine that were similar to those in the ads (that L-theanine was a caffeine antagonist and helped to maintain optimal relaxation) were in fact listed on the GB NHC Register as non-authorised health claims. We further noted that the DHSC Bulletin and accompanying spreadsheet stated that “on hold” health claims could not be used if a similar health claim was listed as non-authorised in the GB NHC Register. Those health claims were therefore in breach of the Code.
In regards to the claim that caffeine “enhances cognition, mental endurance and mood”, ARSJ referred to the DHSC list of “on hold” health claims for caffeine, which included the proposed claim wording “Contributes to mental performance/helps maintain and improve alertness/aids concentration/helps make you feel more energetic/helps revive you/helps keep you alert”. We acknowledged that the claim was currently listed as “on hold” in a list of botanical substances.
We noted the European Food Safety Authority’s (EFSA) positive opinion which stated that a cause and effect relationship had been established between caffeine, for doses of at least 75 mg, and increased alertness and increased concentration, on the basis of the evidence provided to EFSA. In order to assess whether the advertising claim was substantiated under the CAP Code, the ASA expected to also see evidence that supported the claim, in full, ourselves. However, ARSJ had not provided us with such evidence. We therefore considered that ARSJ had not substantiated the claim in ad (a) that caffeine “enhances cognition, mental endurance and mood”.
Notwithstanding the above, as with health claims authorised on the GB NHC Register, marketers could exercise some flexibility with the wording of “on hold” claims. However, we did not consider that the claim that caffeine “enhances cognition, mental endurance and mood” was likely to have the same meaning to consumers as the “on hold” claim. The “on hold” claim referred to mental performance, alertness and concentration, which we considered were not synonymous with “cognition” and “mental endurance” as referenced in the advertising claim. Additionally, we considered that the inclusion of the word “enhances” in the claim in ad (a) exaggerated the “on hold” claim. The advertising claim also referenced mood, which was not referenced in the “on hold” claim. We therefore considered the claims in the ad exaggerated the “on hold” health claim.
Ad (a) also included the claims “get more done” and “Made for mental performance” which we considered were general health claims for the purposes of the Code. General health claims were defined in the Code as references to the general benefits of a nutrient or food for overall good health or health-related well-being. Those were acceptable in ads only if accompanied by a relevant specific authorised health claim (or a suitably worded, substantiated “on hold” claim). However, ad (a) did not include any such claims.
Because the ads included general health claims that were not accompanied by specific authorised health claims, and specific health claims that were not authorised on the GB NHC Register or which exaggerated an “on hold” claim and for which we also had not seen adequate evidence, we concluded that the ads breached the Code.
On this point, ads (a) and (b) breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising) and
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),
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 applicable register. Claims must be presented clearly and without exaggeration.
15.1.1
15.1.1
Only nutrition claims listed in the applicable register may be used in marketing communications.
Only health claims listed as authorised in the applicable register, or claims that would have the same meaning to the consumer, may be used in marketing communications.
and
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.
(Foods, food supplements and associated health or nutrition claims).
2. Upheld
Only nutrition claims authorised on the GB NHC Register could be made in ads promoting food or drink products. The Code defined a nutrition claim as any claim which stated, suggested or implied that a food (or drink) had particular beneficial nutritional properties due to the amount of calories, nutrients or other substances it contained, did not contain, or contained in reduced or increased proportions.
Ad (a) stated “Organic matcha, guarana and guayusa are high in vitamins [and] minerals” and ad (b) stated “powered by nootropic superfoods high in … vitamins and minerals”. We considered consumers would understand these claims to mean that because Brite Drinks included those substances, the drinks were also high in vitamins and minerals. We considered those were therefore nutrition claims for the purposes of the Code. However, the generalised claims “high in minerals” and “high in vitamins” were not authorised on the GB NHC Register. We concluded the claims therefore breached the Code.
On this point, ads (a) and (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 applicable register. Claims must be presented clearly and without exaggeration.
and
15.1.1
15.1.1
Only nutrition claims listed in the applicable register may be used in marketing communications.
Only health claims listed as authorised in the applicable register, or claims that would have the same meaning to the consumer, may be used in marketing communications.
(Foods, food supplements and associated health or nutrition claims).
Action
The ads must not appear again in the form complained of. We told ARSJ Holding Ltd t/a Brite Drinks to ensure that they did not make nutrition or health claims unless they were authorised on the GB NHC Register, and not to use “on hold” claims unless they were compliant with applicable existing national provisions including by holding adequate evidence to substantiate the claim. We also told them not to make general health claims unless they were accompanied by a specific authorised health claim.
