Ad description
A website for a carbonated drink, www.aspiredrinks.com/uk, seen on 8 April 2015, stated "Green tea extract helps reduce body fat".
Issue
Two complainants challenged the claim "Green tea extract helps reduce body fat", which was subject to EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation), which was reflected in the CAP Code.
Response
Aspire Drinks Ltd explained that they were seeking to rely on a claim that had been submitted to the European Commission and was 'on hold'. That claim referred to the botanical substance 'Epigallocatechin-3-gallate (EGCG) / Green tea extract, rich in EGCG' and included the proposed wording "contributes to the reduction of body fat" and "helps to increase fat oxidation and to reduce body fat". Aspire Drinks said the claim in the ad was based on a combination of those two elements of the 'on hold' claim and they believed the claim in the ad did not significantly differ from the wording of the 'on hold' claim. They believed consumers would understand the claim “Green tea extract helps reduce body fat” to mean there was something in the green tea extract which had the described effect. They did not think it was necessary to refer to Epigallocatechin-3-gallate (or EGCG) because they believed consumers would not recognise that compound, and therefore its inclusion would not aid consumer understanding of the claim. They said the 'on hold' claim had a number of key requirements, in particular, it could be made for a green tea extract rich in EGCG, containing no less than 115 mg of EGCG, and that amount should be consumed in one day to achieve the claimed effect.
They said the product contained a high grade green tea extract that they believed was superior to most blends of green tea extract on the market. They explained that one 250 ml can of the product contained more than 125 mg of EGCG, which was more than the amount required to achieve the claimed effect set out in the 'on hold' claim.
Aspire Drinks understood that some negative scientific opinions had been published in respect of the claim. However, because the claim was still 'on hold', it could be used whilst under consideration by the European Commission, subject to the relevant regulatory requirements. They believed the scientific community was, on the whole, accepting of a functional benefit of green tea extract on weight loss and weight management.
They understood that so long as the marketing claim did not alter the meaning of the ‘on hold’ claim, and the product contained the relevant quantity of EGCG as specified in the ‘on hold’ claim, no further substantiation was required.
Notwithstanding that, Aspire Drinks submitted a body of evidence in support of the claim, including one clinical study they had commissioned, the purpose of which was to examine the acute effects of ingesting the product on resting energy expenditure, heart rate and blood pressure. Whilst they recognised there were limitations due to the study's sample size, they felt it supported their theory and had demonstrated that additional calories were burnt following consumption of the product. They believed the study confirmed the product's effectiveness as a weight loss/management drink. They also submitted a proposal for future research.
Assessment
Upheld
The ASA noted that the directors of the company at the time the ad appeared – Neil Blewitt and Darren Linnell – were also the directors and primary shareholders in Farenheit60 Ltd, a company against which the ASA had ruled in respect of very similar claims in 2012, and which went into liquidation with unpaid creditors in 2014.
We noted that under the Regulation, which was reflected in the CAP Code, health claims were defined as those that stated, suggested or implied that a relationship existed between a food category, a food or one of its constituents and health, and that included drinks. Only health claims that appeared on the list of authorised health claims (the EU Register) could be made in ads promoting foods, and marketers must also ensure that they met the conditions of use associated with the claims in question. 'On hold' claims could be used in marketing, provided they were in compliance with applicable existing national provisions (in this case, the CAP Code). 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 (or, in this case, 'on hold') health claim and the aim of the rewording was to aid consumer understanding, and taking into account factors such as linguistic and cultural variations and the target population.
We considered that the claim in the ad "Green tea extract helps reduce body fat" was a health claim. We understood that a proposed health claim, which was currently listed as 'on hold' in a list of botanical substances, had been submitted to the European Food Safety Authority (EFSA) for the botanical substance 'Epigallocatechin-3-gallate (EGCG)/green tea extract, rich in EGCG' and that it included the proposed wording "contributes to the reduction of body fat" and "helps to increase fat oxidation and to reduce body fat". We considered that because the claim in the ad, "Green tea extract helps reduce body fat", did not explain that it was the EGCG in the green tea extract that had the claimed effect, it did not have the same meaning as the claim submitted to EFSA.
We understood the ‘on hold’ claim had received an EFSA negative opinion, which stated that a cause and effect relationship had not been established between the consumption of catechins (including EGCG) from green tea and contribution to the maintenance or achievement of a normal body weight. We considered the evidence provided, taking into account the EFSA Panel’s view of seven studies it had already considered. We did not evaluate those studies, which EFSA had rejected as part of the negative opinion. We understood that other studies had since been submitted to EFSA for consideration in support of the ‘on hold’ claim, and on which it had not yet provided an opinion. We were provided with all but one of those studies. In the meantime, we assessed those studies, together with the other evidence provided.
We had various concerns about the evidence provided. Firstly, the case study commissioned by Aspire Drinks measured the short-term thermogenic effects (i.e. the effect on heart rate, oxygen consumption and release of carbon dioxide, which the authors referred to as 'energy expenditure') immediately after ingesting one can of Aspire, but did not measure the long-term effects of consuming the product on fat reduction or weight loss. We therefore considered it was not relevant to the claim in the ad. We also considered that the study protocol had significant limitations, in particular, the sample size was small and whilst participants were blinded, the assessors were not. In addition, it was unclear whether the results were statistically significant. Furthermore, we noted that the product contained other ingredients, in addition to EGCG, whereas the claim referred solely to EGCG. We therefore expected any studies to measure the effects of EGCG alone on fat reduction and weight loss. For the same reason, we rejected several other studies which measured the effects of a product which had a similar overall composition to Aspire. We therefore considered the case study, and those other studies, were not adequate substantiation for the claim.
Some of the other papers were in vitro studies which looked at the antioxidant and cytotoxicity properties of green tea catechins (including EGCG) and were therefore not relevant to the claim to reduce body fat. Some of the papers were articles summarising evidence, or a research proposal, rather than critical systematic reviews or randomised controlled trials conducted on humans. One was a questionnaire study which relied on self-reporting, and was not blinded or controlled. One was a study conducted on rats, and another measured the effects of oolong tea (not green tea). Some related to a different product that did not have exactly the same composition as Aspire. Other studies measured the combined effects of EGCG and other ingredients (for example, other tea catechins or caffeine), and one measured the combined effects of tea catechins (including EGCG) with exercise, rather than EGCG alone. A randomised double-blinded, placebo-controlled pilot study was provided which measured the effects of EGCG alone. However, the sample size was small, the study measured the short-term effects on energy expenditure and fat oxidation (rather than fat reduction and weight loss) and the results were not conclusive. For those reasons, we also did not consider the studies were adequate to substantiate the claim in the ad.
Because the claim in the ad did not properly reflect the relevant 'on hold' claim submitted to EFSA, and because it had not been substantiated, we concluded that it breached the Code.
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),
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.
and
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.
(Food, food supplements and associated health or nutrition claims).
Action
The ad must not appear again in its current form. We told Aspire Drinks Ltd not to make health claims for foods unless they were authorised on the EU Register, or properly reflected 'on hold' claims that could also be substantiated.
