Background
This Ruling forms part of a wider piece of work on ads making claims about the treatment of symptoms of the menopause. 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.
Ad description
A paid-for Facebook ad for Key, a supplement company, seen on 5 April 2024, included a caption that stated, “Use code TRYKEY for 20% off + Free Shipping on your first one-time purchase of Key For Peri + Menopause”.
The ad featured a video of a woman talking about the product that included the claims, “It’s the most comprehensive menopause support supplement that’s out there, it also works for perimenopause, it also works for post-menopause”; “[F]rom helping with mood, to brain fog, to hot flushes, to night sweats, to just all over, feeling so much better, more energy, and better sleep, that’s what every woman wants”; “[J]ust try a box for a month […] see how you get on first, and let us know, I bet you you’ll see a difference” and “[I]t also supports your immunity, your bone health, your heart health, and cognitive function”.
Issue
The ASA challenged whether:
1. the ad included stated and implied claims that the supplements, or substances in them, could help to prevent, treat or cure the symptoms of the menopause and peri-menopause, which were prohibited by the Code; and
2. the specific and general health claims in the ad relating to the function of the immune system, bone health, heart health and cognitive function complied with the Code.
Response
1. & 2. Femtech Healthcare Ltd t/a KeyForHer said the ad did not use the words “treat”, “cure” or “prevent” in relation to symptoms of menopause or perimenopause. They said the purpose of the ad had been to provide information about the ingredients that were contained in the Key Peri + Menopause product, and their potential benefits for general health and wellbeing, with a particular focus on immune system support, bone health, heart health and cognitive function.
They said Key Peri + Menopause contained a blend of vitamins, minerals and botanical extracts that had been chosen for their specific health-promoting properties. They provided a list of the ingredients and highlighted authorised claims on the Great Britain nutrition and health claims register (the GB Register) relating to those substances. They also provided an overview of the other ingredients and the studies that had been conducted on them for their health effects. KeyForHer also said they had worked alongside doctors and specialists in this area to highlight the benefits of lifestyle changes, hormone replacement therapy (HRT), complementary therapies and supplements in managing symptoms of perimenopause, menopause and post-menopause.
KeyForHer said they were committed to complying with the CAP Code and that upon being contacted, had removed the ad until the issue had been resolved with the ASA.
Assessment
1. Upheld
The CAP Code stated that claims which stated or implied a food could prevent, treat or cure human disease were prohibited for foods.The ad was for the “Key for Peri + Menopause” supplement. It stated, “It’s the most comprehensive menopause support supplement that’s out there, it also works for perimenopause, it also works for post-menopause”; and “[F]rom helping with mood, to brain fog, to hot flushes, to night sweats, to just all over, feeling so much better, more energy, and better sleep, that’s what every woman wants”. We considered consumers would understand these to be claims that the product could treat symptoms of perimenopause and menopause, namely brain fog, hot flushes and night sweats as well as helping to resolve low energy and poor-quality sleep. The ad therefore made claims that the supplements could resolve symptoms of perimenopause and menopause.
The ad also made the claim, “just try a box for a month […] see how you get on first, and let us know, I bet you you’ll see a difference”, which we also considered would be understood by consumers as meaning that the product could help improve the aforementioned symptoms of perimenopause and menopause. Such claims were, for the purposes of the Code, claims to treat disease, which were prohibited for food and food supplements.
We welcomed KeyForHer’s assurance that the ad had been removed. However, because at the time the ad was seen it made claims which stated or implied a food could prevent, treat or cure symptoms of perimenopause and menopause, we concluded 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 defined health claims as those that stated, suggested or implied a relationship between a food or ingredient, and health, and 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 Register), were permitted in marketing communications for foods. The Code also required that general health claims, which were claims that referred to the general benefits of a nutrient or food for overall good health or health-related well-being, must be accompanied by a specific authorised health claim.
The ad stated, “it also supports your immunity […] and cognitive function”. We considered the references to immunity and cognitive function would be understood by consumers to mean the food supplements contained ingredients that could help with the function of the immune system and with cognitive function. These were therefore specific health claims for the purposes of the Code.
The claim “contributes to the normal function of the immune system” was authorised on the GB Register in relation to vitamin A, vitamin B6, vitamin B12, vitamin C, vitamin D, folate, zinc, selenium and iron. The claim “contributes to normal cognitive function” was authorised on the GB Register in relation to zinc, iron and iodine. We understood that the product contained sufficient quantities of all these vitamins and minerals to meet the conditions of use for both of these authorised claims, and therefore could be used in advertising for it.However, health claims must be presented clearly and without exaggeration. Marketers could exercise some flexibility in rewording claims, provided that the reworded claim was likely to have the same meaning for consumers as the authorised health claim. Plus, that the aim of the rewording was to aid consumer understanding and taking into account factors such as linguistic and cultural variations and the target population.
We considered that “supports” in the ad’s claim, and “contributes to” in the authorised claim, would have the same meaning to consumers. However, we considered the ad’s claim “supports your immunity” would have a different meaning to the authorised claim “contributes to the normal function of the immune system”. The latter made clear that the nutrients played a role in the normal function of the immune system, whereas by removing the reference to “normal” function, the claim in the ad implied they boosted the immune system. We therefore considered the claim exaggerated the authorised claim and was unlikely to have the same meaning for consumers as that of the authorised health claim. The claim “supports your immunity” therefore breached the Code. For the same reason, we considered “supports cognitive function” also breached the Code.
Additionally, health claims in ads must be clearly attributed to the specific nutrient named in the authorised claim to reflect its full meaning. The claims in the ad did not attribute the health claims to any of the nutrients referenced above, and instead implied that it related to the product as a whole, which contained other vitamins and nutrients. We considered the claim “it also supports your immunity […] and cognitive function” did not accurately reflect the wording of the authorised health claims for vitamin A, vitamin B12, vitamin D, folate, zinc, selenium, iron, vitamin C, or iodine. We therefore concluded it breached the Code.
We then assessed which claims were general health claims, and which therefore must be accompanied by an authorised specific health claim on the GB Register. We considered the claim “it also supports your bone health, your heart health” would be understood as general benefits of the product for the overall good health of bones and the heart. We considered it was therefore a general health claim for the purposes of the Code and would only be acceptable if accompanied by authorised health claims relating to specific beneficial physiological functions of bone and the heart. However, the claim was not accompanied by relevant, authorised specific health claims, and we concluded it breached the Code.On that point, the ad breached CAP Code (Edition 12) rules 15.1, 15.1.1, 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 Femtech Healthcare Ltd t/a KeyForHer not to state or imply their food supplements could prevent, treat or cure human disease. We also told them to ensure any specific health claims made in their future advertising were authorised on the GB Register and complied with the conditions of use for those claims, and that any general health claims needed to be accompanied by a relevant authorised specific health claim.
CAP Code (Edition 12)
15.1 15.1.1 15.2 15.6 15.6.2 15.7
