Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld
Ad description
A poster ad and a website ad for The Chuckling Goat, a food products provider, seen in April 2020:
a. The poster ad, seen on buses in Reading town centre and Yorkshire, featured an image of a goat, and within it The Chuckling Goat logo, and the claim “The Gut Health Experts”. Larger text to the side stated “What’s your best defence against any virus? Boost your immune system” followed by “Quick and free – Live Gut Health Advice” and the web link www.chucklinggoat.co.uk/advice.
b. The website www.chucklinggoat.co.uk, featured pages titled “The Flu (Influenza)” and “Viruses”. Text on “the Flu” page stated “Scientists have linked disturbances in the gut microbiome, called dysbiosis, with a weakened immune system that can leave you more vulnerable to catching the flu. Improving your gut health is a direct way to boost your immune system. Contact one of our Nutritional Therapists on live chat for quick, free advice on how to improve your gut health and strengthen your immunity”. Further text stated “Products suitable for people who wish to improve their gut health in order to boost immunity are: …” followed by product listings for ‘Probiotic Goats Milk Kefir’, ‘Complete Prebiotic’, ‘Microbiome Test’ and ‘CG oil’.
Text on the “Viruses” page stated “Boosting your immune system is your best protection against any virus. And the fastest way to increase your immunity, is to improve your gut health” and “Damage to the gut microbiome has been shown to harm immunity. Science shows that there are dietary changes that can boost your gut health which will in turn Improve your immunity”. Further text stated “These products are suitable for people who are trying to improve their gut health: …” followed by the same product listings as “The Flu” page.
Issue
Three complainants challenged whether:
1. the implied claims in ad (a) and ad (b) that Chuckling Goat food products could help to protect against viruses and the flu were claims to prevent, treat or cure disease, which were prohibited by the Code; and
2. the specific health claims in ads (a) and (b) that Chuckling Goat food products could boost the immune system complied with the Code.
Response
Chuckling Goat Ltd said that the poster ad campaign had now ended and that they had removed the “Viruses” and “Flu” pages from their website. They provided web links to three articles in relation to gut health and immunity to which they had referred to guide the claims they made in their ads. They said they would cooperate with legal standards and did not intentionally violate any standards, but they did not provide a substantive response.Assessment
1. Upheld
The CAP Code stated that claims which stated or implied a food could prevent, treat or cure human disease were prohibited for foods. Ad (a), the poster, stated “What’s your best defence against any virus? Boost your immune system”, referred to “Live Gut Health Advice”. A web link to further advice was given, but the web page itself featured no written advice and only gave the option to chat with a member of Chuckling Goat’s team via an instant messaging service.
The ASA understood that advice offered through that service focused on the health benefits of Chuckling Goat food products and the substances contained in those products. Further, the top of the web page contained a link to their shopping page where consumers could purchase food products. We considered that consumers who were already familiar with the Chuckling Goat brand would most closely associate it with its kefir-based food products. In that context we considered they would interpret the claims in the ad as relating to the Chuckling Goat food products.
Consumers who were, however, unfamiliar with the brand, we considered, would understand from the ad that Chuckling Goat was offering advice, linked to gut health, about how to prevent catching viruses. Once they followed through to the website there was no advice, but rather links to purchase Chuckling Goat food products. The advice offered via the messaging service was focused on the health benefits of Chuckling Goat food products (or the substances in them); the poster ad was, by extension, marketing for Chuckling Goat’s food products.
We therefore considered that the claim “What’s your best defence against any virus? Boost your immune system” in ad (a) implied that Chuckling Goat food products could help to prevent people from catching viruses by boosting immunity, and was therefore a claim that a food could prevent, treat or cure human disease.
In relation to ad (b), “The Flu” page stated “Scientists have linked disturbances in the gut microbiome, called dysbiosis, with a weakened immune system that can leave you more vulnerable to catching the flu. Improving your gut health is a direct way to boost your immune system” and included a list of products, including food products, which it stated were “suitable for people who wish to improve their gut health in order to boost immunity”. The “Viruses” page similarly included claims such as “Boosting your immune system is your best protection against any virus. And the fastest way to increase your immunity, is to improve your gut health”, and listed food products which it stated were “suitable for people who are trying to improve their gut health”. We considered that because of the context in which these claims appeared, namely on the “Viruses” and “Flu” web pages, alongside featured food products, consumers would understand that those products listed could help to fight against viruses and the flu by boosting immunity and improving gut health.
We concluded that the claims implied that their food products prevented, treated or cured human disease, which was prohibited under the Code. Ads (a) and (b) 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).
2. Upheld
According to Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods (the Regulation), which was reflected in the CAP Code, 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. Health claims could only be made for the nutrient, substance, food or food category for which they had been authorised. Ads (a) and (b) implied that Chuckling Goat’s food products could “boost” the immune system, which was a health claim for the purposes of the Regulation.
We noted that they had provided links to three websites containing information about gut health and immunity. However, they had not provided any evidence to demonstrate that any of their food products contained substances in amounts sufficient that they could use any authorised health claims which related to immune function. Furthermore there were no authorised health claims that any substance could “boost” immunity and we therefore considered that such an advertising claim would be an exaggeration of any of the authorised health claims relating to immune function. Because the ads made a specific health claim, but we had not seen evidence that any of Chuckling Goat’s products met the conditions of use associated with a relevant authorised claim on the EU Register, and the advertising claims in any case exaggerated the meaning of relevant claims authorised on the EU Register, we concluded the ads breached the Code.
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 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 ads must not appear again in the same form. We told Chuckling Goat Ltd to ensure future ads did not state or imply that their food products could prevent, treat or cure human disease and to ensure that any health claims made in their future advertising were authorised on the EU Register and met the conditions of use, and did not exaggerate the meaning, of the relevant authorised claim.
