Background
This Ruling forms part of a wider piece of work on ads making claims about the treatment of symptoms of the menopause. The ads were 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.
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A paid-for Facebook ad for Feminapause, a supplement brand, seen on 27 March 2024, featured an image that contained the claim “95% Success Rate in Menopause Relief”, and, in a smaller pink box within the image, the claim “FSA APPROVED” alongside the Food Standards Agency name and logo.
The accompanying caption stated “FeminapauseTM. Pioneering Natural Menopause Relief since 2019 by using the most effective, highest quality ingredients. The only FSA Approved menopause supplement”. The caption included a list, bulleted by green check mark emojis, which stated “Experience relief from: Night sweats Intense hot flashes Frustrating brain fog episodes Sleep disturbances”.
Underneath the image, alongside a button to “Shop Now”, was again the claim “The only FSA approved menopause supplement”.
Issue
The ASA challenged whether the claims:
1. that stated or implied the supplement could help to treat or cure symptoms of menopause were in breach of the Code; and
2. “The only FSA approved menopause supplement”, “FSA APPROVED” and the imagery of the Food Standards Agency name and logo implied endorsement or approval from the Food Standards Agency.
Response
1. Femgroup Ltd t/a Feminapause said that the claims were supported by research that had been conducted by the advertising team into reviews, feedback and testimonials of thousands of their customers. They said that they had many testimonials from customers who had experienced relief from the symptoms of menopause after taking the product.
2. Feminapause explained that the product contained CBD, which was classified as a novel food by the FSA. They clarified that it was listed on the FSA register of CBD products linked to novel food applications and had passed the initial approval stage.
Assessment
1. Upheld
The CAP Code (which reflected legislation) prohibited claims that stated or implied a food could prevent, treat or cure human disease.The ASA considered that consumers would understand from the claims “95% Success Rate in Menopause Relief” and “Pioneering Natural Menopause Relief since 2019” that the supplement product was intended to treat or cure the symptoms associated with menopause. We noted that the ad further specified that consumers of the product could expect to experience relief from: “Night sweats”, “Intense hot flashes”, “Frustrating brain fog episodes” and “Sleep disturbances”. We considered those claims would be understood to mean that the food supplement could treat or cure problems with sleep, hot flushes, and problems with memory and concentration, which were, as implied by the ad, specific symptoms associated with menopause.
We considered that the claims, that the supplement could treat or cure symptoms of the menopause, both in general terms and in relation to specifically described symptoms, were for the purposes of the legislation reflected in the Code, claims to treat disease. Such claims were prohibited for food and food supplements.We concluded that the ad made claims that a food supplement could prevent, treat or cure disease and therefore it 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 marketing communications must not claim that the advertised product had been approved, endorsed or authorised by any public or other body if it had not, or without complying with the terms of the approval, endorsement or authorisation.
We considered that consumers would understand the references in the ad to “FSA APPROVED” and “the only FSA approved menopause supplement” to mean that the product had been approved by the Food Standards Agency via a formal process. Where it appeared in the caption, the statement “the only FSA Approved menopause supplement” was preceded by the claim that the product contained “the most effective, highest quality ingredients”. The statement “Highest Quality Ingredients” also appeared as one of three points on a checklist on the graphic. We considered that the repetition of both claims meant that consumers would understand that the FSA had approved the supplement based on the criteria of the quality of the ingredients and their efficacy in treating symptoms of the menopause, and that the supplement was unique on that basis.
While not stated in the ad itself, the product contained CBD oil and as such, was considered a ‘novel food’ by the FSA. The product was therefore required to go through an authorisation process, administered by the FSA, to ensure that it had been fully assessed and confirmed to be safe for consumption. The authorisation process for novel foods was intended to establish the product’s safety, and was not an assessment of its quality or efficacy, as we considered consumers would understand from the claims in the ad.
In addition, we noted that the advertiser’s application was still under review. The status of the application was ‘validated’, having been confirmed by the FSA as containing the required information to progress the application. This did not constitute authorisation of the product as a novel food, nor did this guarantee that authorisation would be granted.
Because the ad implied that the FSA approval was based on the quality or efficacy of the product, when in fact it was a requirement for products of this kind, we concluded the claim that the product had been approved, endorsed or authorised by the FSA was misleading.
On that point, the ad breached CAP Code rules 3.1 (Misleading advertising) and 3.50 (Endorsements and testimonials).
Action
The ad must not appear again. We told Femgroup Ltd t/a Feminapause not to state or imply their food supplements could prevent, treat or cure human disease, which for the purposes of the Code included claims to treat or cure the symptoms of menopause. We also told them to ensure that future marketing communications did not state or imply that the product had been approved, endorsed or authorised by the FSA.
