Background
Summary of Council decision:
Four issues were investigated, all of which were Upheld
Ad description
An advertorial for Bounce Back Drinks, published in The Scotsman on 28 September and 3 October 2019, was headed “Enjoy tonight, live tomorrow – get ready to bounce back”. Further large text stated “Bounce Back Drinks have launched the UK’s first After-Alcohol Revival Drink – Bounce Back”.
The body copy included “With around 30 million weekly alcohol consumers in the UK relying on sugary drinks and caffeine to try and replenish their bodies after a night out, it’s incredible that it has taken this long to produce a healthy product that positively deals with the after-effects of alcohol. That’s where Bounce Back Drinks stepped in … A refreshing tropical drink with a unique combination of amino acids, vitamins, minerals … specially selected to replenish nutrients and support liver function … ‘At Bounce Back, we believe everyone can overcome challenges if they have the right support. We provide that support by developing scientifically-backed formulations for specific health challenges. We bring these formulations to the consumers in a tasty and convenient, ready to drink format!’ … The business is fully compliant with the European Food Safety Authority (EFSA), the Medicines and Healthcare products Regulatory Agency (MHRA) and Advertising Standards Authority (ASA) regulations. Bounce Back has been clinically tested for efficacy … Bounce Back is the only drink in the UK with an authorised health claim by the EFSA that it supports normal liver function”.
Issue
The ASA challenged whether: 1. the claim “The business is fully compliant with … Advertising Standards Authority (ASA) regulations” implied endorsement by the ASA; 2. the claims “The business is fully compliant with the European Food Safety Authority (EFSA), the Medicines and Healthcare products Regulatory Agency (MHRA) … regulations” and “Bounce Back is the only drink in the UK with an authorised health claim by the EFSA that it supports normal liver function” implied endorsement or approval of the product by those bodies; 3. the stated and implied claims in the ad that the product could help hangovers was a claim that a food could prevent, treat or cure disease, which were prohibited by the Code; and 4. the specific health claim that the product had “… a unique combination of amino acids, vitamins, minerals … specially selected to replenish nutrients and support liver function” complied with the Code.
Response
1. & 2. Bounce Back Drinks said they had spoken with the MHRA when developing the product’s formulation, to Food Standards Scotland (FSS) to understand the requirements around nutrition and health claims made on foods, and to the Committee of Advertising Practice (CAP) when developing their marketing message. They provided screenshots showing extracts of emails with those bodies. Bounce Back Drinks said they intended the ad to convey that they had taken all the necessary measures to ensure that their product formulation and communications were compliant with relevant rules and regulations; they did not intend to imply they had any endorsement, approval or authorisation from the named bodies.
They said they would not reference the ASA or CAP in future ads. They would also ensure that the MHRA, EFSA or any other regulatory bodies were not mentioned unless they had direct written authorisation from the respective bodies.
3. Bounce Back Drinks said that their product was a health drink with a focus on general well-being following alcohol consumption. The product did not prevent or treat hangovers or any symptoms associated with hangovers and they never used words such as “hangover”, “cure”, “treats”, “heals” or “prevents” in any of their ads. The product was intended to be enjoyed as part of a varied, balanced diet and a healthy lifestyle. They said the product description “After-Alcohol Revival” was a combination of a direction as to when the drink should to be consumed and a non-specific (‘general’) health claim. They referenced other product names which suggested they should be consumed before or after a workout, which they considered were not health claims, and said “After-Alcohol” similarly was a not a claim but a suggestion for when the product should be consumed: post-alcohol consumption, before bed. They believed the term “Revival” suggested a general health benefit and was therefore a general health claim.
They said the CAP Code required that such claims were accompanied by an authorised specific health claim, and referenced authorised claims relating to choline, zinc and selenium, and vitamins B12, B1, B6 and C, which they believed could be used in relation to ingredients in their product. They said they had sought guidance from FSS on health claims, and provided a screenshot of an email from FSS in February 2019 which defined health claims and provided advice on specific wording which did not appear in the ad. They said that the intention of the statement “With around 30 million weekly alcohol consumers in the UK relying on sugary drinks and caffeine to try to replenish their bodies after a night out, it’s incredible that it has taken this long to produce a health product that positively deals with the after-effects of alcohol” was to highlight that the market lacked a healthier solution that consumers could use. It was not their intention to in any way imply that the product could treat, cure, heal or prevent hangovers.
They said they would not make comparisons such as that in their advertising again.
4. Bounce Back Drinks said the claim “… a unique combination of amino acids, vitamins, minerals … specially selected to replenish nutrients and support liver function” was intended to refer to the authorised health claim “Choline supports normal liver function”. They provided lab analysis which they said showed the product contained a sufficient quantity of choline that the claim could be used. They also referred to the authorised health claims referenced in point 3. They said that future ads would reference the relevant nutrient when stating a health claim.
Assessment
1. Upheld
The ASA considered the claim “The business is fully compliant with … Advertising Standards Authority (ASA) regulations” implied that Bounce Back Drinks as a company, and/or its advertising for the After-Alcohol Revival Drink, had been reviewed and approved by the ASA. While we understood that the advertiser had sought advice from CAP’s Copy Advice team in relation to a couple of specific claims, the CAP Code stated that ads must not refer to advice received from CAP or imply endorsement by the ASA or CAP. Because we considered the ad implied endorsement by the ASA we concluded it breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 3.49 3.49 Marketers must not refer in a marketing communication to advice received from CAP or imply endorsement by the ASA or CAP. (Endorsements and Testimonials).
2. Upheld
The CAP Code required that ads must not claim that the marketer or product had been approved, endorsed or authorised by any public or other body if had not. We considered the claim “The business is fully compliant with … the Medicines and Healthcare products Regulatory Agency (MHRA) … regulations” implied that Bounce Back Drinks and/or its product had been reviewed and approved by the MHRA. We understood that the MHRA had provided general guidance to the advertiser in relation to the marketing of medicinal products but considered that did not constitute approval or endorsement by the MHRA. We considered the claims “The business is fully compliant with the European Food Safety Authority (EFSA) … regulations” and “Bounce Back is the only drink in the UK with an authorised health claim by the EFSA that it supports normal liver function” similarly implied that Bounce Back Drinks and/or its product had been reviewed and approved by EFSA. We understood that was not the case. Because neither Bounce Back Drinks nor its product had been approved or endorsed by the MHRA or EFSA, the claims breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 3.50 3.50 Marketing communications must not display a trust mark, quality mark or equivalent without the necessary authorisation. Marketing communications must not claim that the marketer (or any other entity referred to), the marketing communication or the advertised product has been approved, endorsed or authorised by any public or other body if it has not or without complying with the terms of the approval, endorsement or authorisation. (Endorsements and Testimonials).
3. Upheld
The Code prohibited claims that stated or implied a food or drink could prevent, treat or cure human disease. We considered that a hangover and the symptoms associated with a hangover, such as nausea, dehydration, headache, vomiting and stomach upset, were adverse medical conditions and as such claims which stated or implied that a food or drink could prevent, treat or cure a hangover were prohibited under this rule. We considered that the claim "After-Alcohol Revival Drink” would be understood by consumers to mean that the product could help to prevent, treat or cure a hangover, because it implied that the product could help to ‘revive’ people from the effects of alcohol consumption. We concluded, therefore, that the claim breached the Code.
We considered the claim “With around 30 million weekly alcohol consumers in the UK relying on sugary drinks and caffeine to try and replenish their bodies after a night out, it’s incredible that it has taken this long to produce a healthy product that positively deals with the after-effects of alcohol” would also be understood by consumers to mean that the product could help to prevent, treat or cure hangovers, because it would ‘replenish the body’ after consuming alcohol and “positively deal with the after-effects of alcohol”. We concluded, therefore, that the claim breached the Code on that basis. We further considered the claims “We provide … support by developing scientifically-backed formulations for specific health challenges” and “Bounce Back has been clinically tested for efficacy”, in the context of the other claims in the ad which stated or implied that the product could prevent, treat or cure hangovers, would also be understood as implied claims that the product could prevent, treat or cure hangovers.
On that point, the ad breached CAP Code (Edition 12) rule 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).
4. Upheld
Only health claims listed as authorised on the EU Register of nutrition and health claims made on foods (the EU Register) were permitted in marketing communications. The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food, drink or ingredient and health. Some flexibility could be exercised in rewording claims, provided that the reworded claim was likely to have the same meaning for consumers as the authorised claim. Health claims could only be made for the nutrient, substance, food or food category for which they had been authorised. We understood that the product contained sufficient quantities of choline for the advertiser to use the authorised health claim “Choline contributes to the maintenance of normal liver function” in its advertising for the product. However, we considered that consumers would understand from the claim “… a unique combination of amino acids, vitamins, minerals … specially selected to … support liver function” that it was the product formulation as a whole, rather than specifically the choline in it, that would provide the health benefit of supporting liver function. We considered that the wording “supports” would be understood by consumers as having the same meaning as “contributes to”, but we concluded that by removing the authorised wording “maintenance of normal …” the advertising claim had the effect of exaggerating the authorised claim, because it did not make clear that it related to the normal functioning of the body.
On that 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.
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 the form complained of. We told Bounce Back Drinks Ltd not to refer to advice received from CAP or imply endorsement by the ASA or CAP in their marketing communications, or to claim that they, their advertising or their product had been approved, endorsed or authorised by any public or other body if it had not. We told them not to make claims that their product/s could prevent, treat or cure disease, including not using the claim “After-Alcohol Revival Drink” or other claims which stated or implied the product could prevent, treat or cure hangovers. We further told them to ensure that health benefits described in an authorised health claim were attributed to the nutrient, substance, food or food category for which the claim had been authorised, and that any rewording of an authorised health claim did not exaggerate its meaning.
