Background
This Ruling forms part of a wider piece of work on claims that food supplements treat anxiety. The ad was identified for investigation following intelligence gathered by our Active Ad Monitoring system, which uses AI to proactively search for online ads that might break the rules. See related rulings published on 24 July 2024.
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A paid-for Facebook ad for supplement company Auri Nutrition, seen on 20 March 2024, featured a testimonial which stated “I was extremely skeptical overall because of what the product promises but I am so absolutely thrilled with the results. I feel so sharp and focused with increased energy overall. I’m going to be ordering some for my 83 year old mom who is struggling with memory fog and fatigue. I cannot wait for her to try them. – Lisa W”.
A video below contained a voice-over which stated, “[…] nootropic super mushroom gummies. There’s 3,000mg of adaptogens crammed into these gummies […] They work as a secret weapon to eliminate stress, obliterate brain fog, and improve focus […] twelve powerful super mushrooms like Lion’s Mane, Royal Sun, and Chaga […] just two of these gummies can transform your life in ways you wouldn’t believe”.
Issue
1.The ASA challenged whether the claim that the gummies could “eliminate stress” implied that the product could prevent, treat or cure human disease, which was prohibited by the Code.The ASA also challenged whether the following claims breached the Code:
2. the specific health claims “nootropic”, “adaptogen” and those relating to focus, energy and fatigue, memory and brain fog; and
3. the general health claims “just two of these gummies can transform your life in ways you wouldn’t believe”, “super mushroom”, and “powerful super mushroom”.
Response
1., 2. & 3. Ejec Ventures LLC t/a Auri Nutrition explained that while they held evidence to show that Lion’s Mane mushroom was used to relieve the symptoms of stress and depression, they understood that they could not make claims that their products could prevent, treat or cure human disease. They also accepted that any specific health claims that they used must be authorised on the Great Britain nutrition and health claims (NHC) register. They further acknowledged that any general health claims used in their ads must be accompanied by a specific authorised health claim. They said that, since they were based in the United States, they had not appreciated the need to comply with the CAP Code or the NHC register at the time that they published their ad to consumers in the UK. They voluntarily withdrew the ad and said they would not make the challenged claims identified in paid-for social media posts to consumers in the UK unless they were in accordance with the CAP Code.Assessment
1. Upheld
The CAP Code prohibited claims which stated or implied a food could prevent, treat or cure human disease.
The ASA welcomed Auri Nutrition's assurance that they had removed the ad and in future would not make claims that did not comply with the CAP Code. However, we considered the claim in the ad relating to the elimination of stress would be understood by consumers as an implied claim to prevent, treat or cure anxiety. We therefore considered it was a claim that a food supplement could prevent, treat or cure disease. We concluded that it therefore breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 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 Great Britain nutrition and health claims register (the GB Register) were permitted in marketing communications for food or food supplements. The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food or ingredient, and health.
We considered the claims relating to energy and fatigue, which included “struggling with [...] fatigue” and “increased energy” would be understood by consumers to mean that the supplement would improve energy levels and reduce tiredness and physical and mental fatigue. The claims relating to focus, memory and brain fog, which included “I feel so sharp and focused”, “improve focus”, “struggling with memory fog” and “obliterate brain fog” would be understood as meaning that the supplement would help cognitive function and mental performance. Those claims related to specific beneficial health effects and were therefore also specific health claims.
We considered that while some consumers may not be familiar with the terms “nootropic” and “adaptogen”, they related to specific health benefits. We understood the term “nootropic” was used to describe substances which enhanced cognitive function. We considered that those consumers familiar with the term would therefore understand the claim to mean that the gummies would help with cognitive function and mental performance. We understood the term “adaptogen” was used to describe natural substances believed to help the body respond to stress. We therefore considered the claim “adaptogen” would be understood to mean that the gummies would support the body’s ability to respond to stress. “Nootropic” and “adaptogen” were therefore specific health claims.
We had not seen any evidence which demonstrated that the above specific health claims were authorised on the GB Register in relation to the advertised supplement or any of its listed ingredients, including Lion’s Mane, Royal Sun, and Chaga. They therefore breached the Code.
On that point, the ad 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 also stated that general health claims could be made in relation to foods only if they were accompanied by a relevant specific, authorised health claim. General health claims were defined as those referring to a general benefit of a nutrient or food for overall good health or health related well-being.
The ad featured the claims “just two of these gummies can transform your life in ways you wouldn’t believe”, “super mushroom”, and “powerful super mushroom”, which we considered to be general health claims for the purposes of the Code. However, the ad did not contain any specific authorised health claims.Because the ad featured general health claims that were not accompanied by a specific authorised health claim, we concluded that they breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 15.2 (Food, food supplements and associated health or nutrition claims) and 15.7 (Food supplements and other vitamins and minerals).
Action
The ad must not appear again in the form complained of. We told Ejec Ventures LLC t/a Auri Nutrition to ensure their ads did not make claims that a food or food supplement could prevent, treat or cure human disease. We also told them to ensure any specific health claims were authorised on the GB Register and complied with the conditions of use for those claims, and that any general health claims were accompanied by a relevant authorised specific health claim.
BCAP Code
CAP Code (Edition 12)
15.6 15.6.2 15.1 15.1.1 15.7 15.2 15.7
