Background
Summary of Council decision:
Five issues were investigated all of which were Upheld.
Ad description
A website, www.chemistdirect.co.uk, for Ateronon Tomato Pills, a lycopene-based food supplement, featured text which stated "Tomatomax Pure High Strength Tomato Extract ... TomatoMax™ lycopene supplement is extremely rich in antioxidants and phyto-nutrients which can help to reduce the risk of cardiovascular disease ...". Further text stated "Tomatoes contain high levels of Lycopene which have been linked to a reduction in cholesterol levels and support heart health".
Text beneath the subheading "How Does TomatoMax™ Work? The Science Behind The Secret ..." stated "Packed full of phyto-nutrients, Bioconcepts TomatoMax™ is a powerful, all-natural antioxidant found to be beneficial to heart health ... The formulation of TomatoMax™ is made from non-GMO tomatoes that have been specifically selected for their high levels of Lycopene. The extraction process ensures the tomatoes are high quality, super strength and rich in a range of active tomato phytonutrients. Lycopene is well documented for its cardiovascular system health benefits and has also been seen to be beneficial for sufferers of exercise induced asthma, preeclampsia, prostate cancer and sunburn.
Issue
The complainant challenged whether the following claims were authorised health claims on the EU Register:
1. "Tomatoes contain high levels of Lycopene which ... support heart health";
2. "Lycopene is well documented for its cardiovascular system health benefits and has also been seen to be beneficial for sufferers of ... sunburn."; and
3. "TomatoMax™ lycopene supplement is extremely rich in antioxidants".
The complainant also challenged whether the following Reduction of Disease Risk claims were authorised by the EU Commission and met the conditions of use associated with the relevant claim:
4. "Tomatoes contain high levels of Lycopene which have been linked to a reduction in cholesterol levels"; and
5. "Lycopene is well documented for its cardiovascular system health benefits and has also been seen to be beneficial for sufferers of exercise induced asthma, preeclampsia, prostate cancer".
Response
Direct Healthcare Ltd t/a Chemist Direct (Chemist Direct) acknowledged that the claims breached the Code and said they had removed the claims.
Assessment
1., 2., 3., 4., & 5. Upheld
The ASA considered the claims "Tomatoes contain high levels of Lycopene which ... support heart health", "Lycopene is well documented for its cardiovascular system health benefits and has also been seen to be beneficial for sufferers of ... sunburn" and "TomatoMax™ lycopene supplement is extremely rich in antioxidants" were health claims, i.e. claims that stated, suggested or implied that a relationship existed between a food category, a food or one of its constituents and health. We considered the claims "Tomatoes contain high levels of Lycopene which have been linked to a reduction in cholesterol levels" and "Lycopene is well documented for its cardiovascular system health benefits" were reduction of disease-risk claims, i.e. claims that stated, suggested or implied that the consumption of a food category, a food or one of its constituents significantly reduced a risk factor in the development of a human disease. We also considered the claim "Lycopene ... has also been seen to be beneficial for sufferers of exercise induced asthma, preeclampsia, prostate cancer" was a claim to treat or cure disease and was therefore not acceptable under CAP Code 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
Health claims and reduction of disease risk claims were only acceptable under the CAP Code if they were listed as authorised in the EU Register of nutrition and health claims. Because we had not seen evidence that the claims were authorised by the European Commission, we concluded that they breached the Code.
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.
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.
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
15.7
15.7
Nutrition and health claims for food supplements must be permitted or authorised as provided for at rule 15.1.1 above. 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.
(Food, food supplements and associated health and nutrition claims).
Action
The ad must not appear again in its current form. We told Chemist Direct not to make health claims or reduction of disease risk claims for foods if they were not listed as authorised in the EU Register.
