Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Claims in two website ads for Forever Living products:
a. Claims on the website www.foreverliving.com, for the supplement “Forever Therm” stated “This carefully created formula contains a special combination of vitamins, including B6, B12 and C, which contributes to the reduction of tiredness and fatigue. Perfect for anyone who is interested in metabolism”.
b. The website www.foreverfituk.co.uk featured images of three people under the heading “SUCCESS STORIES”. Clicking on the name of each person took users to a profile of that person, including ‘before and after’ images and details of their ‘before and after’ weight and waist measurements. Each profile stated that the person “completed a 69-day programme”.
Issue
Northamptonshire Trading Standards challenged whether:
1. the health claims in ad (a) for the “Forever Therm” supplement were authorised on the EU Register of nutrition and health claims made on foods; and
2. the claims in ad (b) for the three individuals’ rates or amounts of weight loss were in compliance with the Code.
Response
1. Forever Living Products (UK) Ltd said the claim in ad (a) related to authorised health claims on the EU Register of nutrition and health claims made on foods (the EU Register) for each of the listed vitamins. They said the health claim “contributes to the reduction of tiredness and fatigue” was authorised on the EU Register in relation to vitamins B6, B12 and C. The wording in the advertising claim, they believed, was exactly the same as those authorised claims.
They said the advertising claim “Perfect for anyone who is interested in metabolism” related to the health claims: “contributes to normal energy-yielding metabolism”, which was authorised in relation to vitamins B6, B12 and C; “contributes to normal homocysteine metabolism”, which was authorised in relation to vitamins B6 and B12; and “Vitamin B6 contributes to normal protein and glycogen metabolism”.
They said they considered those authorised health claims when composing the ad, as well as the EFSA Opinions which recommended to the EC that the claims be authorised. They said that they were careful not to confuse consumers by using overly technical descriptions of their products. They referred to statements in those Opinions which referred to the effects of the vitamins as being “beneficial to human health” and being “a beneficial physiological effect”. They said they had simplified those statements to “Perfect for anyone who is interested in metabolism”. They considered the wording of the advertising claim did not state or imply any improvement to metabolism.
Forever Living understood that, according to the conditions of use for each of the authorised health claims on which their advertising claims were based, the Forever Therm product must meet the conditions of use for a “source of ... vitamin/s” nutrition claim, as listed in the Annex to Regulation (EC) 1924/2006 on nutrition and health claims on foods (the Regulation). That meant that the food must contain at least 15% of the recommended daily allowance of each of the referenced vitamins. Forever Living said that Forever Therm provided 75 mg of vitamin C, 1.3 mg of vitamin B6 and 2.4 mcg of vitamin B12, which equated to over 90% of the recommended daily allowance for each vitamin.
2. Forever Living said the case studies were genuine and the results could be substantiated with documentary evidence. They said the three featured individuals undertook the F.I.T. Programme, which covered 69 days. The ads stated the duration of the programme so that consumers who visited those web pages would have important information about the durtion of the individuals' trial programmes. They said the programme was designed to educate about the importance of toning, nutrition and fitness, and its focus was on fitness and well-being. They said the claims therefore related to a weight loss programme rather than to a food or foods. They consequently believed that section 15 of the CAP Code on Food, food supplements and associated health or nutrition claims did not apply. They believed instead that section 13 of the CAP Code applied to weight loss programmes such as the F.I.T. programme.
Forever Living said the website did not include any claims for weight loss in relation to a specific food. They said the references to the loss of inches from the individuals’ waists were from toning rather than weight loss, for example “Adam lost 1.1kg in weight but 3” from the waist”. They said their understanding was that as waist measurement change related to toning rather than weight loss those claims were compliant with Code rule 13.9. They indicated they were willing to amend the text if the ASA considered otherwise.
Forever Living also considered the ad complied with Code rule 13.10, which required that claims that an individual had lost an exact amount of weight must be compatible with good medical and nutritional practice; for individuals who were normally overweight a rate of weight loss greater than 2 lbs per week was unlikely to be compatible with good medical or nutritional practice. They said the average weight loss described in relation to the three individuals was 1.5 lbs per week.
Assessment
1. Upheld
According to the Regulation, which was reflected in the CAP Code, only health claims listed as authorised on the EU Register were permitted in marketing communications for foods, including food supplements. Health claims were defined as those which stated, suggested or implied a relationship between a food, or ingredient, and health. Marketers could exercise some flexibility in rewording authorised claims, provided that the reworded claim was likely to have the same meaning for consumers as the authorised health claim. The aim of the rewording was to aid consumer understanding, taking into account factors such as linguistic or cultural variations and the target population. Health claims must be presented clearly and without exaggeration.
We understood that Forever Therm contained sufficient quantities of vitamins B6, B12 and C to meet the conditions of use for a “source of ... vitamin/s” nutrition claim, and therefore the authorised health claims for vitamins B6, B12 and C referenced by Forever Living could be used in advertising for Forever Therm.
However, health claims could only be made for the nutrient, substance, food or food category for which they had been authorised and not for the product itself. Whilst we noted the claim “This carefully created formula contains a special combination of vitamins, including B6, B12 and C, which contributes to the reduction of tiredness and fatigue. Perfect for anyone who is interested in metabolism” referred to all three vitamins to which the various authorised health claims related, we considered the overall impression created was that it was the particular formulation and combination of vitamins in Forever Therm which delivered the health benefits, rather than each of the individual vitamins referenced in the ad. It was also not clear which vitamins provided which of the referenced health benefits. We therefore concluded that the relationship between the food and the health benefits had not been made sufficiently clear.
Notwithstanding the above, we acknowledged that the section of the claim which stated “... contributes to the reduction of tiredness and fatigue” otherwise reflected the wording of the authorised health claims for vitamins B6, B12 and C.
We noted Forever Living considered the claim “Perfect for anyone who is interested in metabolism” was an adaptation of three authorised health claims which referenced metabolism. However, we noted that each authorised claim referred to the relevant vitamins’ contribution to a different type of metabolic process; to normal energy-yielding metabolism, and to the normal metabolism of the substances homocysteine, protein and glycogen. We considered that, because the claim in the ad implied a general health benefit for “metabolism”, without providing any further detail as to the specific metabolic processes referenced in the authorised claims or what the specific health benefit might be, the claim constituted a reference to the general benefits of the product for overall health-related well-being. It was therefore, a general health claim which must be accompanied by a specific relevant authorised health claim or claims. Because the claim was not accompanied by a relevant specific authorised health claim (such as the three referenced by Forever Living), we considered it was in breach of the Code.
Additionally, we considered the claim “Perfect for anyone who is interested in metabolism” would not in any case be an acceptable adaptation of any of the three authorised health claims, as put forward by Forever Living, because when read in conjunction with the previous sentence it would be understood to relate to the particular formulation and combination of Forever Therm rather than the individual vitamins which provided the health benefits. It also did not properly reflect any of the authorised claims, in particular because it did not make clear the specific metabolic processes with which each of the named vitamins had a health relationship.
Because the ad did not make clear the relationship between the food and the referenced health benefits, and because it made a general health claim which was not accompanied by a relevant authorised health claim, we concluded it was in breach of the Code.
On this point, ad (a) breached CAP Code (Edition 12) rules
15.1
15.1
Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Claims must be presented clearly and without exaggeration.
15.1.1
15.1.1
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
15.2
15.2
References to general benefits of a nutrient or food for overall good health or health-related well-being are acceptable only if accompanied by a specific authorised health claim.
and
15.7
15.7
Nutrition and health claims for food supplements must be permitted or authorised as provided for at rule 15.1.1 above. Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim as specified in the EU Register.
(Food, food supplements and associated health and nutrition claims).
2. Upheld
We noted Forever Living’s comments regarding the applicability of section 15 of the CAP Code. The F.I.T. Programme comprised four programmes which were intended to be followed one after the other: the nine-day “C9” programme; 30-day “F1” and “F2” programmes, and the “VITAL5” programme which was intended to be incorporated into the daily lifestyle thereafter. Consumers purchased the relevant programme pack, which for the C9, F1 and F2 programmes comprised varying ranges of food supplements and meal replacement foods and an information booklet. The booklets outlined a day-by-day schedule of when to take the supplements and meal replacements provided in the pack, and provided additional advice on exercise options and low-calorie meals and healthy eating. The VITAL5 pack included only food supplements.
The web pages which featured the weight loss claims for the three individuals did not provide any information about the F.I.T. programme. However, each of those web pages included links to other web pages that provided brief information about the C9, F1 and F2 programmes, including statements which emphasised the food products, images of the pack contents and lists of the supplements and meal replacements in the pack. Each of those pages included links to Forever Living’s online shop where the packs could be purchased and where each of the supplements and meal replacement foods was listed. Additionally the F.I.T. programme website home page emphasised the food element of the Programme, stating “Nutrition plays a huge part in sports performance and weight management. Forever’s products are designed to provide your body with the fuel it needs to reach its full potential. Combining premium quality products with easy-to-follow information and guidance, the F.I.T. programme will help you to push your body to the limit”. We considered the food supplements and meal replacement foods were presented as the key component of each of the packs. As a result, consumers who viewed the web pages that referred to the three individuals’ weight loss would link those weight loss claims to the food supplements and meal replacement foods. We therefore concluded that section 15 of the CAP Code was applicable.
Because the ad included health claims for foods which referred to a rate or amount of weight loss, we concluded it was in breach of the Code.
On this point, ad (b) breached CAP Code (Edition 12) rule 15.6.6 15.6.6 Health claims that refer to a rate or amount of weight loss. (Food, food supplements and associated health and nutrition claims).
Action
Ads (a) and (b) must not appear again in their current form. We told Forever Living Products (UK) Ltd to ensure the health benefits described in an authorised health claim were attributed to the nutrient, substance, food, or food category for which the claim had been authorised; and that they should not refer to general, non-specific health benefits of their food products unless those claims were accompanied by a relevant authorised health claim. We also told them not to include health claims that referred to a rate or amount of weight loss in future ads for the F.I.T. Programme.
