Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A website and a listing for apps on Google Play, for E-Drinks Ltd, an app designed to improve the taste of drinks, seen in December 2017:
a. The website www.edrinks.science , contained a page entitled “inspired by Nature” which included three bubbles which stated “wellness… leisure… weight loss”. Next to the title five icons were labelled “e-green tea”, “e-brandy”, “e-vodka”, “e-tequila” and “e-gin & tonic”. In the body text it stated “Water is the vital ingredient in most types of drinks we enjoy. But the simple water molecule H20 can easily be affected by electromagnetic interference from many sources. This degrades its refreshing qualities… If you were to taste water directly from a high mountain stream then compare to even bottled spring water this becomes obvious. The mountain fresh water molecules have been aligned by the Earth’s own electromagnetic field. Pulsar Technology uses part of a smartphone’s radio system in a unique, patented process. We can pulse radio waves of special frequency to revitalise ‘tired’ water - taking it much closer to the quality of the water taken directly from that mountain stream … the revitalised water that Pulsar Technology creates…makes health-giving teas much more potent and effective and even dramatically improves unremarkable brands of vodka, brandy and tequila. Experience this for yourself with Pulsar e-drinks apps”.
A page titled “Tequila and water: a unique relationship” stated “Pulsar technology can rejuvenate the water fraction giving an open hydrogen-bonded structure and give the tequila an improved texture and taste. After Pulsar waves are applied, tequila will improve to a mellower texture and develop a more elegant character”.
A page titled “the e-spirits bar” stated “Why pay more for premium spirits? With Pulsar you can use your smartphone to greatly improve everyday vodka - and more”.
A page titled “water woken up” included a video which included a voice-over that stated, “This is Pulsar technology, a revolutionary way to use the radio systems on your smartphone, with an app, to give a new life to your tired water… Pulsar water is water woken up… with pulsar technology it is so simple to unlock the luxurious premium qualities”.
b. The Google Play listing for “Pulsar e-tequila” stated “Pulsar will provide short bursts of magnetic energy to your tequila to provoke a more intimate mixing of ethyl alcohol, water and other components. In particular, water responds by adopting a more open structure which gives the resulting e-tequila a softer, more mellow and more elegant character. The texture will also transform to give a silkier feel in the mouth with pulsar treatment”.
Issue
The ASA received two complaints:
1. One complainant challenged whether the claims in ad (a) that the product assisted with weight loss were misleading and could be substantiated.
2. One complainant challenged whether the claims in ads (a) and (b) that Pulsar technology could improve the taste of the drinks were misleading and could be substantiated.
Response
1. E-Drinks Ltd responded that, in the case of green tea, when Pulsar Technology was delivered from a smartphone during the infusion period, the hot water extracted more of the compounds coumarin and EGCG present in the tea which were critical in dieting and weight loss. They said that coumarin was a known appetite suppressor and EGCG was a key compound in weight loss regimes since it was known to promote fat metabolism and clearance.
E-Drinks provided a link to a report of a study entitled ‘Medicinal Significance of Coumarins’ published in a peer-reviewed journal which stated that coumarin was an “appetite suppressant” and concluded that it had “significant therapeutic potential”. They further provided a reference to a study about the effects of EGCG.
To support their position that Pulsar Technology extracted more of the compounds coumarin and EGCG than would otherwise be extracted when green tea was infused in hot water, E-Drinks provided a research paper. The paper tested the effects of the app on green tea and found that the active samples of tea which made use of the technology appeared to have extracted a higher amount of coumarin and EGCG than the control samples, which did not make use of the technology.
2. E-Drinks responded that pulsar technology was based on the relationship between water and microwaves at the frequency 2.4 GHz. They explained that at that frequency, water would rotate around its dipole, which was the basis behind microwave ovens. They provided a paper which explained the technology and how it interacted with water.
E-Drinks provided the results of a test undertaken by an independent expert on taste who concluded that the effects of the technology improved the taste of all the drinks referenced in ads (a) and (b).
Assessment
1. Upheld
The ASA considered that consumers would understand the claim “weight loss” in the context of the ad, including the prominence of the claim, to mean that one of the main properties of the app was that its use assisted with weight loss when it was used on water and other drinks.
We noted that E-Drinks had provided evidence in support of the claim that the app assisted with weight loss in relation to its use with green tea only. E-Drinks considered that the technology assisted with weight loss because they claimed that it extracted more of the compounds coumarin and EGCG from green tea than would otherwise be extracted when making a cup of green tea. We noted that in 2016 we had assessed a body of evidence submitted in support of claims that the EGCG in green tea contributed to weight loss and concluded that they were not adequate to support such claims.
We assessed the studies that had been provided to us by E-Drinks. The first, which detailed the medical significance of coumarin, stated that coumarin was an appetite suppressor. However, that was not the main subject of the paper and, although it did reference that it was an appetite suppressor in the opening abstract, the paper concentrated on its pharmaceutical and therapeutic use, and did not mention its effects when consumed alongside the other compounds found in green tea.
E-Drinks had provided links to another study, although they did not provide the full study or explain its relevance to the product. The study noted that EGCG stimulated autophagy (the process whereby damaged cells were broken down within the body), that EGCG-mediated fat clearance was associated with increased autophagy, and concluded that EGCG may play an important role in reducing harmful conditions in the liver associated with obesity. However, the hypothesis was not tested on humans and the study did not mention EGCG’s relationship with other compounds found in green tea specifically. Taken together with the evidence we had previously reviewed relating to green tea, we considered we had not seen sufficient evidence to show that the compounds in green tea that E-Drinks stated were enhanced by its technology would assist with weight loss.
We further considered that the research provided by E-Drinks was not adequate to support the claim that the technology would extract more of the compounds coumarin and EGCG from green tea. The experiment which measured the amount of coumarin that was extracted was performed just once with an active and control sample, and the second, which measured the amount of EGCG extracted, was performed only five times with an active and controlled sample. The study also did not determine whether the recorded higher amounts of EGCG or coumarin were statistically or clinically significant enough to assist with weight loss. We considered that the study was not sufficiently robust in its methodology to support the claims in the ad.
Because we considered that the evidence was not adequate to substantiate the claims in ad (a) that the technology would assist with weight loss when applied to water-based drinks, we concluded that the ad was misleading.
On that point, ad (a) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and 13.1 13.1 A weight-reduction regime in which the intake of energy is lower than its output is the most common self-treatment for achieving weight reduction. Any claim made for the effectiveness or action of a weight-reduction method or product must be backed, if applicable, by rigorous trials on people; testimonials that are not supported by trials do not constitute substantiation. (Weight control and slimming).
2. Upheld
We considered that consumers would understand the claims relating to improvements in the taste of water, vodka, brandy and tequila in ads (a) and (b) to be objective claims, based on scientific principles, that the taste of those drinks would be improved by using the apps.
E-Drinks provided us with tests carried out by two testers who tasted the drinks referenced in the ad and provided their report of the difference in flavour depending on whether the technology had or had not been used. We considered that the reports relied on subjective experience, and did not explain how the scientific principles outlined in the ad contributed to that effect. We further noted that we had not received evidence to show if the testers had been blinded to whether they were drinking drinks that made use of the technology, or drinks that had not, or any other information about the methodology followed during the taste tests. We also did not receive information about whether the testers were fully independent of the advertiser, or what their relative experience was in the field.
Because we had not seen sufficiently robust, objective evidence to support the advertising claims that the technology used by E-Drinks would directly improve the taste of the drinks referenced, we concluded ads (a) and (b) were misleading.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
Action
The ads must not appear again in their current form. We told E-Drinks Ltd not to claim that their technology acted in such a way on beverages that they assisted with weight loss, or to claim that it improved the taste of drinks, unless they held adequate evidence to support those claims.
