Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
An email, a website and an Instagram post for Heights, an online food supplement provider:
a. The email, seen on 28 October 2022, featured text that included “no one had made a probiotic designed specifically with the gut-brain axis in mind, until we did. The strains in the Smart Probiotic are backed by over 380 scientific studies”. Text that stated “SHOP NOW” linked to ad (b).
b. The page on the Height’s website, www.yourheights.com, seen on 28 October 2022, featured the heading “Smart Probiotic” above text that stated “Our high-impact formula has 20 billion CFU’s [sic] of clinically-studied, proprietary strains, plus zinc, is [sic] the world’s first probiotic to support your gut and mind”, with further text that stated “[tick symbol] Gut health [tick symbol] Mental health [tick symbol] Immune health”.
Under the heading “Discover the benefits”, text stated “Everything your gut needs in one daily capsule” above three sub-headings. The first stated “Gut health” and was accompanied by text that stated “Digestive health* [bold] Supports digestive function and growth of beneficial gut bacteria, while promoting regularity and stool hydration GI relief* [bold] Helps alleviate occasional GI discomfort, such as bloating, gas, constipation, and diarrhoea Restores balance* [bold] Aids intestinal barrier repair after antibiotics”. The second stated “Brain and mental health” and was accompanied by text that stated “Balanced mood* [bold] Promotes a feeling of calm, easing tension and panic. Cognitive health* [bold] Supports normal brain function, helping with focus, energy, memory, and more. Restful sleep* [bold] Encourages peaceful, restorative sleep”. The final sub-heading stated “Immune health” and was accompanied by text that stated “Immune system support* [bold] Contributes to healthy gut immune function, maintaining normal immunological responses. Soothes inflammation* [bold] Helps regulate oxidative damage, and may play a role in the allergic immune response. Gut-barrier integrity* [bold] Promotes healthy gut-barrier function”.
The page also featured text that included “For a flourishing gut microbiome [bold] Your microbiome is an entire ecosystem that impacts every part of your body. From digestion to bloating, to energy, and even immune health, a thriving microbiome supports your whole body’s well-being from within […] First to target mental health [bold] 95% of serotonin is made by your gut, constantly supplying your brain. So we created the first probiotic to target the gut-brain axis, with Cerobiome (R) – clinically proven to support your mood so can find calm naturally”. Text in the footer of the page stated “* These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure or prevent any disease”.
c. The Instagram post, posted from the Heights account, @yourheights, on 31 January 2023 featured a video of Russell Brand discussing Heights’ Smart Probiotic product. He stated “We know our brain sends messages all over our bodies […] It’s in constant communication. But did you know that the gut is speaking back to your brain? […] The more we learn about how the gut is connected to everything else, the more we understand how much a good probiotic can impact every process in your body […] After two years of development, Heights have launched the world’s first probiotic to support gut, brain, and immune health in one daily capsule, the smart probiotic, a product that targets gut health and your mental health and immunity in one. Help my digestion. Improve my mood in a miserable rainy January in the Northern Hemisphere […] Awaken yourself today”. The caption stated “Heights customer @russellbrand shares why he is loving the new Smart Probiotic [lightning emoji][pill emoji][fire emoji] […] #probiotic […] #supplements #guthealth #immune health #brainhealth #healthiswealth […] #guthealing #microbiome #mental wellness #sciencebacked”.
Issue
Two complainants challenged whether:
1. the specific health claims in ads (b) and (c), which required authorisation on the Great Britain Register of nutrition and health claims, and the general health claims in ads (a), (b) and (c), which were required to be accompanied by an authorised specific health claim, breached the Code; and
2. ads (b) and (c) made claims that stated or implied that the advertised food supplement could prevent, treat or cure human disease, which was prohibited by the CAP Code.
Response
1. In relation to some of the specific claims in ads (b) and (c) regarding the advertised product’s effects on cognitive, mental and digestive health, Braincare Ltd t/a Heights said that the product contained zinc, and referred to a range of claims that were authorised on the Great Britain nutrition and health claims Register (the GB Register): “Zinc contributes to normal cognitive function”; “Zinc contributes to normal macronutrient metabolism”; “Zinc contributes to normal carbohydrate metabolism”; “Zinc contributes to normal acid-base metabolism”; “Zinc contributes to normal metabolism of fatty acids”; and “Zinc contributes to normal metabolism of vitamin A”. In relation to the specific health claims regarding the immunological effects of the product, Heights referred to another authorised specific health claim for zinc, which was “Zinc contributes to the normal function of the immune system”.
Heights acknowledged that some of the specific health claims in ads (b) and (c) were not authorised on the GB Register. However, they believed the claims accurately characterised their product’s impact on health. They provided a spreadsheet that linked to various scientific articles exploring the effects of various bacterial strains their product contained. Heights believed the findings supported that their product benefitted users’ digestive, immunological, cognitive and mental health in each of the ways claimed in ads (b) and (c). Heights added that, while not yet authorised in the UK, some of the specific health claims in the ads were authorised for another ingredient, Cerabiome, in other countries like Canada and Brazil.
Heights stated that they did not intend for “probiotic”, which appeared in the ads’ copy and the product name, to be interpreted as a specific or general health claim. They understood there was often disagreement regarding the term’s interpretation. They were aware the ASA had previously considered similar claims to be unauthorised health claims when made in relation to food. However, they said their use of “probiotic” was consistent with common practice in the food supplement industry. While it was possible those with technical expertise would regard “probiotic” as a health claim, consumers were more likely to understand it as a neutral label for food products containing bacteria. They stated “probiotic” was used by retailers, the media, and medical professionals as a general term for “friendly bacteria”, which had influenced consumer interpretation of the term.
They emphasised their view that the majority of their sector used “probiotic” in relation to similar food products. For that reason, they felt the issue, if any, was sector-wide. They believed removing “probiotic” from their advertising, including the advertised product’s name, would put them at an unfair disadvantage in relation to their competitors. They also noted that other countries, including Spain and the Netherlands, had recently excluded “probiotic” claims from the requirements of EU Regulation 1924/2006, which classified them as health claims, and thereby permitted their use in reference to food products that contained particular strains of bacteria if specific conditions were satisfied. On that basis, they thought it likely regulations in the UK were also likely to change to allow “probiotic” claims.
They added that “Smart” was intended to capture the intelligent formulation and production methods used in the product’s development, which they believed had delivered a unique and particularly effective combination of bacterial strains.
2. In relation to the claims “Soothes inflammation” and “May play a role in the allergic immune response” in ad (b), Heights referred to the following claims that were authorised on the GB Register in relation to zinc: “Zinc contributes to protection of cells from oxidative stress” and “Zinc contributes to normal function of the immune system”. They believed the wordings of those claims closely paralleled those of the authorised claims. They also highlighted that their product contained a range of bacterial strains and referred to 33 scientific papers that investigated potential effects of those strains on users’ immune or inflammatory responses. As for the claims “GI relief Helps alleviate occasional GI discomfort, such as bloating, gas, constipation, and diarrhoea”, “Aids intestinal barrier repair after antibiotics” and “easing […] panic” in ad (b), Heights referred to 71 scientific papers that explored the effects of bacterial strains on digestive or mental health. Heights also believed that those papers substantiated the “#guthealing” claim in ad (c).
Assessment
1. Upheld
The CAP 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. Heights had provided third-party scientific articles in support of the health claims made in the ads. However, only specific health claims authorised on the GB Register could be made in ads promoting food or drink products. Any authorised health claims made in an ad must meet the associated conditions of use. In particular, specific health claims could only be made for the nutrient, substance, food or food category for which they had been authorised. In addition, the Code required that general health claims, which were claims that referred to the general benefits of a nutrient or food for overall good health or health-related well-being, must be accompanied by a specific authorised health claim.
We first assessed which claims in ads (b) and (c) were specific health claims and which therefore must be authorised on the GB Register.
Ad (b) featured the claim “Supports digestive function and growth of beneficial gut bacteria, while promoting regularity and stool hydration”. We considered that claim gave the impression that, by impacting the balance of bacteria in the digestive system, the advertised product could aid the process of digestive transit. Ad (c) featured the claim “Help my digestion”, which we considered was also a claim to aid digestive transit. We further considered that the claims “Gut-barrier integrity” and “Promotes healthy gut-barrier function” in ad (b) would be understood as meaning the product supported the maintenance of the intestinal barrier (which helped to block the passage of harmful microorganisms and substances into the body). Additionally, we considered the claim “Restores balance” in ad (b) would be similarly understood in the context of its appearance above text that referenced the intestinal barrier. Claims to aid the process of digestive transit or support the function of the intestinal barrier were specific health claims.
Ad (b) also featured the claim “Helps regulate oxidative damage […]” which we considered implied the advertised product had an antioxidant effect. We also considered the claim “Immune system support* Contributes to healthy gut immune function, maintaining normal immunological support” in ad (b) would be understood to mean the product supported the normal functioning of the immune system. Claims to have an antioxidant effect or support the immune system were specific health claims.
Ad (b) featured the claims “Balanced mood* Promotes a feeling of calm, easing tension […]” and “95% of serotonin is made by your gut […] with Cerobiome (R) – clinically proven to support your mood so can find calm”, and ad (c) featured the claim “Improve my mood in a miserable rainy January in the Northern Hemisphere”. We considered those were claims that the product could help to regulate mood. We considered the claim in ad (b) in relation to serotonin implied the product helped with the production of that neurotransmitter. We further considered the claim “Restful sleep* Encourages peaceful, restorative sleep” in ad (b) would be understood as meaning the product improved sleep. In addition, we considered the claim “Supports normal brain function, helping with focus, energy, memory, and more” suggested the product supported cognitive health in various ways, including by aiding the brain processes underlying focus, concentration, energy and memory retrieval. We considered each of those claims in ads (b) and (c), regarding the product’s effect on mental health, cognitive health and on sleep, were specific health claims.
Heights had referred to a number of specific health claims that were authorised on the GB Register in relation to zinc. However, none of the ads referred to the action of zinc specifically. Instead, all the ads referenced the name of the product, “Smart Probiotic,” included other references to “probiotics”, and variously also referred to “strains”, “bacteria” and the “microbiome”. In that context we considered consumers would understand that all the health benefits described in the ads derived from the particular formulation of the product as a whole, and in particular the bacterial strains it contained. The authorised claims for zinc therefore were not relevant in supporting the use of the advertising claims. None of the specific health claims in the ad were authorised on the GB Register in relation to the “Smart Probiotics” product or any of the bacterial strains it contained. The claims therefore breached the Code.
We then assessed which claims in ads (a), (b), and (c) were general health claims, which therefore must be accompanied by an authorised specific health claim on the GB Register.
The term “probiotic” featured in “Smart Probiotic”, the name of the product advertised in ads (a), (b) and (c), as well as in the ads’ copy, including in the following claims: “no one had made a probiotic designed specifically with the gut-brain axis in mind” in ad (a); “the world’s first probiotic to support your gut and mind” and “the first probiotic to target the gut-brain axis” in ad (b); and “The more we learn […], the more we understand how much a good probiotic can impact every process in your body”, “the world’s first probiotic to support gut, brain, and immune health”, “the smart probiotic […] targets gut health and your mental health and immunity in one”, and “#probiotic” in ad (c). We first considered that, in the context of the ads’ claims regarding the product’s beneficial effect on gut health, consumers were likely to understand “probiotic” as describing a substance that contributed to the general good health of the gut. In relation to the “probiotic” claims above that also referred to immunity, mental health, or the brain, we considered they would be understood as meaning that the claimed impact of the product on gut health was accompanied by general benefits for users’ mental, cognitive or immunological health.
Ad (b) featured the claims “Gut health [tick symbol]”, “Gut health*”, “Digestive health” and “Everything your gut needs in one daily capsule”. In addition, Ad (c) featured the claim “#guthealth”. We considered those claims were claims that the product helped to maintain the overall good health of the gut. We also considered the claims “Designed specifically with the gut-brain axis in mind” and “support your gut and mind” in ad (b) would be similarly understood, with the further implication that the product delivered general benefits for users’ overall cognitive health.
Ad (b) also featured the claim “For a flourishing gut microbiome Your microbiome is an entire ecosystem that impacts every part of your body. From digestion to bloating, to energy, and even immune health, a thriving microbiome supports your whole body’s well-being”. We considered that claim would be understood as meaning the product’s action on the gut microbiome benefitted users’ overall health, including by improving digestive and immune health. In addition, we considered that consumers would understand the claims “#immunehealth” in ad (c) and “[tick symbol] Immune health Immune system support Contributes to gut immune function, maintaining normal immunological responses” in ad (b) as meaning that the product benefitted the overall good health of the immune system.
We then considered that consumers would understand the claims “Mental health [tick symbol]”, "First to target mental health", “Immune health”, “Brain and mental health” and “Cognitive health*” in ad (b) as general claims that the product benefitted mental and cognitive health. We further considered that the hashtags "#brainhealth". "#mentalwellness" and "#mentalhealth" in ad (c) would be similarly understood.All the above claims were general health claims for the purposes of the Code. However, none of the claims were accompanied by authorised specific health claims as was required. The claims therefore breached the Code.
On that point, ads (a), (b) and (c) breached CAP Code (Edition 12) rules 15.1, 15.1.1, 15.2, and 15.7 (Food, food supplements and associated health or nutrition claims).
2. Upheld
The CAP Code prohibited claims that stated or implied that a food could prevent, treat or cure human disease.
We considered that the claim “GI relief Helps alleviate occasional GI discomfort, such as bloating, gas, constipation, and diarrhoea” in ad (b) would be understood as meaning that the product could help to treat each of these adverse digestive conditions. Ad (b) then featured the further claim “Aids intestinal barrier repair after antibiotics”. In the context of the previous claim’s reference to digestive conditions, we considered the claim implied that taking antibiotics could give rise to adverse digestive conditions which the product could help to treat. In addition, ad (c) featured the hashtag “#guthealing”, which we considered would be understood as a claim that the product could treat or cure a range of digestive conditions.
We considered that consumers would understand the claim “may play a role in the allergic immune response” in ad (b) as implying that the product could remedy hypersensitivity in the immune system, including by decreasing the frequency or severity of users’ allergic reactions. Ad (b) also featured the claim “soothes inflammation”, which we considered would be understood as meaning that the product helped to treat inflammation. Ad (b) featured the further claim “easing […] panic”, which we considered would be understood as meaning that the product could help to treat panic attacks or anxiety.
Because each claim referred to an adverse health condition, we considered that ads (b) and (c) made claims that a food could prevent, treat or cure human disease and therefore concluded that they breached the Code.
On that point, ads (b) and (c) breached CAP Code (Edition 12) rules 15.6 and 15.6.2 (Food, food supplements and associated health or nutrition claims).
Action
The ads must not appear again in the form complained of. We told Braincare Ltd t/a Heights to ensure that, in future, their ads for foods did not include any of the following: general health claims that were unaccompanied by an authorised specific health claim for which the advertised food met the relevant conditions of use; unauthorised specific health claims for which the food did not meet the conditions of use for the claim; and claims to prevent, treat or cure human disease.
CAP Code (Edition 12)
15.7 15.1 15.2 15.6 15.1.1 15.6.2
