Background
Summary of Council decision:
Five issues were investigated, all of which were Upheld
Ad description
Four circulars and two press ads for Lucy Memory Power, a supplement:
a. The first ad, an eight-page circular for Lucy Memory Power seen in Healthy for Life in September 2022, was titled “Lucy Memory Power PREVENTION and ANTI-AGING”, and “SPECIAL EDITION ALZHEIMER’S AND DEGENERATIVE DISEASES”. The front page featured an image of a man and a woman with anxious expressions, and the top section of their heads were depicted as having been fragmented into small pieces. Claims overlaying the image included, “Your BRAIN is your IDENTITY You can SAVE it! There is still time”, “Preserve your BRAIN and Mind!” and “AN Innovation CITICOLINE MOLECULE WHICH STOPS THE AGING OF your brain”. A blue text box headed “Alzheimer’s” featured text stating, “TODAY ALZHEIMER’S MORE! Science gives us great hope. Researchers have succeeded in developing a formula to protect the brain from BRAIN AGING and to PREVENT AGING from occurring”. Under the heading “NOTHING IS EVER LOST” the page featured the image of a man and woman smiling and holding a photograph, and text stating, “They have come so far Our customers nearly all lost their mental faculties […]”.
On the second page, under the heading “ATTENTON” the page featured a list including, “Memory loss”, “Language disorders”, “Disorientation”, Loss of interest”, “Loss of judgment”, “Mood swings”, “Lost Objects”, “Change of personality”, followed by the statement, “And you, where are you? To find out take this quick test. At first, we don’t worry: a little forgetfulness… an absence of a few seconds, a feeling of disinterest… However, these symptoms are not trivial and can be the first signs of a cerebral, [sic] disorder”. Under that text stated, “You sometimes lose your focus […] Whatever your result, there is a solution: DISCOVER IT QUICKLY”.
The adjacent page was headed “PROTECT YOURSELF and your loved ones!”, and featured an image of a man with the caption “Frank Rivet Scientific Advisor”, and text that stated, “Until today, only 5,000 people in the UK have been able to take advantage of LUCY Memory Power. It was very difficult to get it. These pioneers have now recovered their memory, their activities […] And you, do you also want to regain all of your faculties? […] with LUCY Memory Power you can”. The page also featured before and after photos of “Mrs Michelle D., 78 years old”. The “BEFORE” photo featured a woman with a concerned expression and the caption “Some days I just didn’t know where I was…”, the “AFTER” photo was captioned “Today, I no longer have doubts or worries!”, and featured the woman laughing and cooking with two other women. Below the images text stated, “LUCY Memory Power… provides your brain with the perfect daily content of Cognityl plus a synergy of natural active ingredients […] that complement and increase its action […] Your memory improves dramatically. You regain mental clarity and psychological balance. No more lost items, forgotten dates […] In short your brain protects itself better against alterations due to age and environment”. A text box headed “Cognityl” stated, “A key active ingredient […] stimulates the vitality and renewal of neutrons. It eliminates the waste that blocks their connections, restores all the nutritional and chemical balances of the brain… and protects you against the risk of Alzheimer’s. Cognityl increases neuronal turnover by 26% and increases the energy use of the brain by 13.6% in a 6-week trial carried out on adults aged 60 and over”.
The circular included a page headed “How does the Alzheimer’s disease set in?”, with information about the causes and stages of the disease. The adjacent page headed “Limit the RISKS […] It’s all about acting while there is still time!” included a section with suggestions for reducing the risk of the disease. Below that, text stated “These simple ways of life are important… but not enough! And the bad news, some drugs have just been decommissioned due to the economy. However, there is great hope! An exceptional treatment based on Citicoline has just seen the light of day […] it prevents cerebral aging, and it repairs the beginning of neuronal damage due to Alzheimer’s disease. This treatment […] is called LUCY Memory Power”. It went on to state “When the first symptoms appear, the disease has already begun to operate silently. It is therefore necessary to act as soon as the first changes (memory, behaviour, etc) occur. A true elite treatment, Lucy Memory Power gives very promising results when the disease is caught at its beginning”.
A further page headed “Make the right choice” featured a list of ingredients, including “Cognityl… contains caffeine and theobromine. It improves intellectual performance and increases the level of concentration”, “Rhodiola (Rose Stonecrop) […] widely used as an antioxidant and natural remedy against sleep disorders and fatigue […] protects our cells with its anti-inflammatory effect and has a positive influence on the cardiovascular system”, “Ashwagandha (Indian ginseng extract) […] would calm and improve quality of sleep and resistance to stress”, “Bacopa Monnieri (Water Hyssop Extract) […] used for centuries […] for its healing methods. In addition to its anti-inflammatory properties, “Brammi” is able to stimulate brain functions”. The list also included “Lion’s Mane (Hericium erinaceus) […] has an excellent reputation as a natural protection against dementia. Also, may help to relieve mild symptoms of depression and anxiety”, “Maritime pine bark extract […] with an anti-inflammatory effect”, “L-Theanine Rebalances the production of various neurotransmitters such as serotonin and dopamine” and “L-Tyrosine […] contributes to the proper functioning of the nervous system”. Further text in a column on the side of the page stated, “Lucy Memory Power is not just a treatment. It is this exceptional method that only a few stars and privileged people have been able to enjoy so far”.
The back page featured the heading “ALZHEIMER’S emergency Your brain is a treasure: save it while there is still time”. Below, a bulleted list included “No more memory lapses”, “Don’t be lost when you go out”, “Never lose your items again”, “Find all your mind and faculties”, “Find your personality and a stable mood”, and “Find the links with those you love”.
b. The second circular, a condensed version of ad (a), seen in a different edition of Healthy for Life in September 2022, included many of the claims and content detailed above.
c. The press ad, seen in the 31 December 2022 edition of the Daily Mail’s Weekend supplement, was titled “A DOCTOR DISCOVERS HOW TO RESTORE YOUR MEMORY with these new capsules that help rebuild an ageing brain that loses its good oxygenation over time […]”. The ad featured an image of a man in a white lab coat and wearing a stethoscope with the product on his hand, and a caption stating “AS SEEN ON TV”. It also featured an image of a human brain and below that, two still images of MRI scans; the first with the caption, “Memory lost”, and the second stating, “Memory recovered”. Under the heading “THE AID TO MAITAINING MEMORY, HELPS TO CLEAR YOUR MIND AND IMPROVES YOUR CONCENTRATION”, the ad stated, “DR. THOMAS S. CROWLEY knows better than anyone the human brain and how it works. He is the greatest specialist in the world in his field […] He kept his notes for 17 years and ended up breaking his silence at a recent medical conference […] He presented a capsule that can help restore the memory and protect the brain”.
Under the heading “Is your brain struggling to work? To find oxygen in order to function properly?”, the ad stated, “[…] with age, the brain finds it more difficult to find oxygen. So Cowley says: ‘This lack of oxygen prevents the nutrients from reaching the brain, and the effects are devastating. Neurotransmitters are no longer produced in sufficient numbers for memory’ […] it is absolutely necessary to increase the number of neurotransmitters”. A further heading stated, “Re-oxygenate your brain right now” followed by text that stated, “‘With my formula, the brain regains the function you had 15 years ago. And that’s only after 37 days of taking these capsules’, he said”, followed by the heading “Memory problems are correctable”.
The ad featured a text box with a bulleted list of statements that included “Strengthens memory”, “Increases focus”, “Boosts learning”, “Increases mental clarity” and “Intensifies concentration”. Accompanying text stated, “Doctor Crowley’s capsules are now available under the name LUCY MEMORY POWER Advanced Brain Supplement”, and also stated […] can help strengthen memory, increase your ability to concentrate and learn, and lower your stress and anxiety levels”.
Below that was an image of a woman alongside the heading “’I have maintained my memory with Lucy… it works’ Jane, Leeds”. Text stated, “[…] My memory is like new! Before I was going through hell, I had so much trouble remembering things in daily life… I even had trouble following a movie or remembering the story of the book that I had started the day before… Sometimes my memory would come back and, at other times, I didn’t even know what day it was anymore… All that is in the past, my memory has improved thanks to Lucy Memory Power, my daily life is much easier and my mood has improved naturally […]”.
d. The third circular, a Home Shopping Selections insert seen in the Daily Mail on 18 February 2023, included a product listing titled “Lucy Memory Power The Aid to Maintaining Your Memory”. Text stated “Dr. Thomas S. Crowley knows better than anyone the human brain [sic] and how it works. He is the greatest specialist in World [sic] in his field. His patients always asked him the same question: “Doctor when will you find a remedy for Memory loss?” So the good doctor dedicated his life to finding a solution. He kept his notes for 17 years and ended up breaking his silence at a recent medical conference. ‘I think that, finally, I have found it’, he announced to his colleagues. He presented a capsule that can help restore the memory and protect the brain”.
The ad went on to state, “Doctor Discovers How to Restore Your Memory with these new capsules that help rebuilding [sic] an ageing brain that loses its oxygenation over time. A capsule that will help you focus on your ideas, enables you to concentrate better and make you regain your memory you had 15 years ago”.
e. The fourth circular, seen in Home Shopping Selections in February 2023, included the same image and text as ad (d).
f. The second press ad, seen in the 4 April 2023 edition of Woman’s Weekly, included the images and text as ad (c).
Issue
1. Seven complainants challenged whether ads (a)-(f) made claims that stated or implied that Lucy Memory Power prevented, treated, or cured human disease, in particular Alzheimer’s disease, memory loss and anxiety, which was prohibited by the Code.
The ASA challenged whether:
2. the claim “Lucy Memory Power”, and the claims relating to the product’s ingredients including Cognityl, in ads (a)-(f), were health claims that complied with the Code;
3. the ads included health claims which referred to the recommendation of individual health professionals, “Dr Thomas S. Crowley… the greatest specialist in the world in his field” in ad (c), (d), (e) and (f) and “Frank Rivet Scientific Advisor” in ads (a) and (b);
4. whether the various testimonials including those by “Mrs Michelle D.,” in ads (a) and (b), and “Jane, Leeds” in ads (c) and (f), were genuine; and
5. ads (a) and (b) irresponsibly caused undue fear and distress without justifiable reason in their approach to Alzheimer’s disease.
Response
1., 2., 3., & 5. Direct Response Marketing Group Ltd t/a Wellform said the product supplier had provided documents and reports relating to the claims in the ads. They provided a report which included the title and summary of research papers and clinical studies, some of which related to ingredients contained in Lucy Memory Power, including Cognityl. They also provided further product information - including ingredients lists and the packaging copy for Lucy Memory Power - and an email in Portuguese dated May 2021, which they said was authorisation to sell the product from the manufacturing government.
4. Wellform said the copy and ads had been provided by a US copywriter who, in the interest of anonymity, could not provide further details of the customers featured in the ads.
Assessment
1. Upheld
The ASA considered Lucy Memory Power had been presented in the ads as a food supplement and was therefore subject to CAP Code section 15, for food, food supplements and associated health or nutrition claims. Additionally, we understood Lucy Memory Power contained ingredients which were considered to be medicinal by function, and therefore Code section 12, for medicines, medical devices, health-related products and beauty products, also applied to the ads.
The Code stated that claims which stated or implied that a food supplement prevented, treated or cured human disease were not acceptable in marketing communications. Ads (a) to (f) featured the claims “capable of reducing the effects of Alzheimer’s”, “it repairs the beginning of neuronal damage due to Alzheimer’s disease […] Lucy Memory Power gives very promising results when the disease is caught at its beginning” and “protects you against the risk of Alzheimer’s”. Ads (a) and (b) were also presented as a “SPECIAL EDITION ALZHEIMER’S AND DEGENERATIVE DISEASES”. Further claims in ads (a)-(f) related to treating or curing memory loss stated, “DOCTOR DISCOVERS HOW TO RESTORE YOUR MEMORY with these new capsules”, “no more memory lapses”, “a capsule that can help restore the memory and protect the brain”, “With my formula, the brain regains the function you had 15 years ago […] Memory problems are correctable!”, “do you also want to regain all of your faculties?” and “Find all your mind and faculties”. Ads (c) and (f) also included images of two MRI scans, the first with the caption “Memory lost”, and the second stated “Memory recovered”. Additionally, ads (c) and (f) featured the claims “lower your stress and anxiety levels”, while ads (a) and (b) stated “Lion’s Mane (Hericium erinaceus) […] may help to relieve mild symptoms of depression and anxiety”. Ads (a) and (b) further featured claims related to the anti-inflammatory effects of named ingredients in Lucy Memory Power: “Rhodiola […] protects our cells with its anti-inflammatory effect”, “Bacopa Monnieri […] In addition to its anti-inflammatory properties […]” and “Maritime pine bark extract […] with an anti-inflammatory effect […]”.
We considered those claims stated or implied that Lucy Memory Power could prevent, treat or cure Alzheimer’s disease, memory loss, anxiety and depression, and had anti-inflammatory effects, which was prohibited by the Code.
Additionally, the Code required that medicinal claims and indications were made only for medicinal products licensed by the Medicines & Healthcare products Regulatory Agency (MHRA), or under the auspices of the European Medicines Agency (EMA). We understood Lucy Memory Power contained three ingredients which were considered to be medicinal by function: Bacopa monnieri (Water Hyssop Extract), Rhodiola rosea (Golden root) and Hericium erinaceus (Lion’s Mane). The product therefore required marketing authorisation as a medicine. However, we understood Lucy Memory Power was an unlicensed medicinal product.
Because the ads featured claims that stated or implied that a food supplement could prevent, treat or cure human disease, which was prohibited by the Code, and because the ad had promoted an unlicensed medicinal product, we concluded the ads had breached the Code.
On that point, the ads breached CAP Code (Edition 12) rules 12.1 (Medicines, medical devices, health-related products and beauty products), 15.6 and 15.6.2 (Food, food supplements and associated health or nutrition claims).
2. Upheld
The CAP Code required that only health claims authorised on the applicable register, which in this case was the Great Britain nutrition and health claims register (the GB NHC Register), were permitted in marketing communications for foods. The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food, drink or ingredient and health.
Ads (a)-(f) made the claim “Lucy Memory Power” which we considered implied the product could promote general good memory recall, and was therefore a specific health claim as it indicated a specific cognitive and neurological function of the brain.
Ads (a) and (b) featured the claims “your memory improves dramatically”, “Cognityl increases neuronal turnover by 26% and increases the energy use of the brain by 13.6%”, “Cognityl […] stimulates the vitality and renewal of neutrons”. Ads (c) and (f) also featured the claims “Strengthens memory” and “increase the number of neurotransmitters”. We considered those claims implied that Lucy Memory Power, and one of its ingredients, Cognityl, had the beneficial effect of improving memory by increasing neural activity and the number of neurotransmitters in the brain. We concluded the claims were therefore specific health claims for the purposes of the Code.
Further claims in ads (c) and (f) stated, “HELPS TO CLEAR YOUR MIND AND IMPROVES YOUR CONCENTRATION”, “Increases focus”, “Boosts learning”, “Increases mental clarity”, “Intensifies concentration” and “increase your ability to concentrate and learn”. Ads (a) and (b) featured the statement “improves intellectual performance and increases the level of concentration”. We considered those claims suggested the product could improve concentration and the ability to learn and were therefore specific health claims.
Ads (a) and (b) featured further health claims related to various ingredients in Lucy Memory Power. The ads stated “Ashwagandha (Indian ginseng extract) […] would calm and improve quality of sleep”, Bacopa Monnieri (Water Hyssop Extract) […] able to stimulate brain functions”, “L-Theanine Rebalances the production of various neurotransmitters such as serotonin and dopamine” and “L-Tyrosine […] contributes to the proper functioning of the nervous system”. We considered those were specific health claims that the substances named had the beneficial effect of helping to protect cells from oxidative stress, improving sleep, stimulating brain functions and balancing serotonin and dopamine production, and contributing to the functioning of the nervous system, respectively.
Because we had not seen evidence the specific health claims in ads (a) to (f) were authorised on the GB NHC Register, we concluded they breached the Code.
On that point, the ads breached CAP Code (Edition 12) rules 15.1, 15.1.1 (Food, food supplements and associated health or nutrition claims) and 15.7 (Food supplements and other vitamins and minerals).
3. Upheld
The CAP Code stated health claims that referred to the recommendation of an individual health professional were not acceptable in marketing communications for food supplements.
As referenced at point 2, ads (a) and (b) made specific health claims about the product shown. The ads featured an image of a man with the caption “Frank Rivet Scientific Advisor”. Ads (c), (d), (e) and (f) referred to “Dr Thomas S. Crowley”, who was the primary focus of each ad. Ads (c) and (f) also featured an image of a man we considered would be understood to represent Doctor Crowley. We considered that consumers would understand from the ads the advertised product would provide the claimed health benefits, and had been created by, and was therefore by extension recommended by, the individuals shown – a scientific advisor and a doctor who specialised in memory.
We therefore concluded that ads (a) to (f) breached the Code because they featured health claims that referred to the recommendation of an individual health professional.
On that point, the ads breached CAP Code (Edition 12) rule 15.6.3 (Food, food supplements and associated health or nutrition claims).
4. Upheld
The CAP Code stated marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication was genuine, and hold contact details for the person who gave it.
Ads (a) and (b) included a testimonial from “Mrs Michelle D., 78 years old”, along with “before” and “after” photos. Ads (c) and (f) featured an image and a testimonial from a woman identified as “Jane, Leeds”. We considered consumers would understand those were genuine images and testimonials from individuals who had used Lucy Memory Power. However, Wellform had not provided any evidence to demonstrate the testimonials were genuine. We therefore concluded ads (a), (b), (c), and (f) were misleading on that point.
On that point, ads (a), (b), (c) and (f) breached CAP Code (Edition 12) rules 3.1 and 3.45 (Endorsements and testimonials).
5. Upheld
The CAP Code required marketing communications were prepared with a sense of responsibility to consumers and to society, and did not cause fear or distress without justifiable reason; and if it could be justified, the fear or distress should not be excessive. Marketers must not use a shocking claim or image merely to attract attention.
As referenced at points 1 and 2, ads (a) and (b) made claims about Alzheimer’s disease and memory loss. A page titled “How does the Alzheimer’s disease set in?” featured detailed information about the causes, effects and stages of Alzheimer’s disease, including visual illustrations of the brain degenerating. The page featured references to death such as “always takes a tragic turn” and “TERMINAL STAGE”, as well as a line graph representing the progress of the disease with captions such as “Placement in a residential centre” and “Patient death”. Furthermore, the front cover image on the ads showed two people with anxious expressions and depicted their brains as fragmenting into pieces. We also understood some complainants, whose family members had been affected by Alzheimer's, had found the ads distressing. We considered the descriptions, claims and images, that referenced the severe health effects of Alzheimer’s disease, and in particular death, were likely to cause fear and distress to some readers.
We understood that Alzheimer’s disease could only be formally diagnosed by doctors or professional specialists through various assessments. Ads (a) and (b) featured a “quick” test which stated, “At first, we don’t worry: a little forgetfulness […] an absence of a few seconds […] However, these symptoms are not trivial and can be the first signs of a cerebral, [sic] disorder”. The test invited readers to self-assess whether they had symptoms of Alzheimer’s disease, such as memory lapses, losing focus, misplacing objects and feeling tired, many of which we considered were generic symptoms, commonly experienced by many people. We considered that encouraging readers to self-assess for generic symptoms they were likely to have experienced at some point, in association with testing for Alzheimer’s disease, was also likely to cause fear and distress.
Additionally, throughout ads (a) and (b) there were statements with calls to action to urgently prevent or reduce the risk of Alzheimer’s disease, including “Your BRAIN is your IDENTITY You can SAVE it! There is still time”, “ALZHEIMER’S emergency”, and “Its [sic] all about acting while there is still time”. Ads (a) and (b) also featured claims that suggested Lucy Memory Power was an exclusive product or was scarcely available, such as, “Until today, only 5,000 people in the UK have been able to take advantage […] It was very difficult to get it” and “only a few stars and privileged people have been able to enjoy so far”. The ad also stated, “the bad news, some drugs have just been decommissioned due to the economy”. We considered those claims suggested existing medicines used to treat Alzheimer’s had recently become unavailable too. We considered that the references to time running out and to the limited availability of the product, together with the tone of the language in the ads, conveyed a sense of urgency to act quickly to prevent Alzheimer’s disease by purchasing Lucy Memory Power, which also contributed to the sense of fear and distress that the ads were likely to cause.
We considered that the level of fear and distress the ads were likely to cause to some readers was not justifiable. We therefore concluded ads (a) and (b) presented information about Alzheimer’s disease in an irresponsible manner likely to cause undue fear and distress, and were in breach of the Code.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rules 1.3 (Social responsibility) and 4.2 (Harm and offence).
Action
The ads must not appear again in the form complained of. We told Direct Response Marketing Group Ltd t/a Wellform to ensure their marketing communications did not state or imply that a food supplement could prevent, treat or cure Alzheimer’s disease, memory loss or anxiety, or promote unlicensed medicines at all in future. They must also ensure that any specific health claims made in relation to foods and food supplements were authorised on the GB NHC Register.
We also told Wellform they must not make health claims that referred to the recommendation of an individual health professional in their marketing communications for food supplements. Unless they held documentary evidence demonstrating they were genuine and the contact details for the person who gave it. the testimonials or endorsements also must not appear.
Additionally, they must ensure ads were prepared with a sense of responsibility and did not cause undue fear and distress to consumers.
CAP Code (Edition 12)
1.3 3.1 3.45 4.2 12.1 15.7 15.1 15.6 15.1.1 15.6.2 15.6.3
