Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A press ad for the vitamin and supplements supplier Healthspan, seen on 27 March 2017, promoted the supplement "Opti-Turmeric", and featured the headline claim “Turmeric absorption unlocked”. The ad featured an image of the product pack, which contained the text "Opti-Turmeric. Optimal absorption curcumin. Support cartilage formation and immune health.1" In the small print at the bottom of the ad, the relevant footnote stated "1Vitamin C has also been added to support cartilage formation and immune health". A subheading in the main body of the ad stated "EASILY ABSORBED, FAST ACTING JOINT SUPPORT2". The relevant footnote stated "2Pending EC Claim ID4012 ‘helps maintain the health of joints and bones.’” Text within the main body of the ad stated, “Turmeric is rich in a natural compound called curcumin, which many scientists and food health experts believe can offer joint health support”. Further text stated, “Vitamin C has also been added to support cartilage formation and immune health”.
Issue
The complainant challenged the following claims, which were required to comply with the requirements of Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), as reflected in the CAP Code:
1. "Support cartilage formation and immune health"; and
2. "Fast acting Joint Support".
Response
1. Healthspan Ltd said that the claim “support cartilage formation and immune health” and the accompanying claim “Vitamin C has also been added to support cartilage formation and immune health” in the small print were based on two health claims for Vitamin C, which were authorised on the EU Register of nutrition and health claims made on foods (the EU Register). Those were: “Vitamin C contributes to the normal collagen formation for the normal function of cartilage” and “Vitamin C contributes to the normal function of the immune system”. They said that the product featured within the ad was Opti-Turmeric, which contained 20 mg of Vitamin C, and therefore complied with the conditions of use for those authorised claims.
2. Healthspan said that the small print made clear that the use of “joint support” referred to the pending EC claim ID4012 (Turmeric / curcuma longa) “helps maintain the health of joint and bones”. They provided a copy of a scientific opinion issued by the European Food Safety Authority (EFSA) in 2010, which contained a negative opinion on the claim in question after assessment by EFSA. They said that they understood that despite the negative opinion, the claim was still ‘on hold’ and could still therefore be used in advertising until it was formally rejected. They also said that an external regulatory advice service said they could use the claim while it was still on hold.
Assessment
1. Upheld
According to the Regulation, 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. We understood that Opti-Turmeric contained sufficient quantities of Vitamin C to meet the conditions of use for the authorised claims on the EU Register that “Vitamin C contributes to the normal collagen formation for the normal function of cartilage” and that “Vitamin C contributes to the normal function of the immune system”, meaning that those health claims could be used in ads for the food supplement.
However, the ad did not directly quote those authorised health claims, and had instead reworded them with the claim “support cartilage formation and immune health”. We understood that marketers were allowed to 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 should be to aid consumer understanding, taking into account factors such as linguistic or cultural variations and the target population.
We accepted that “support” and “contributes to” would have the same meaning to consumers. However, we considered that the re-worded claim “support cartilage formation” would have a different meaning to the authorised claim “contributes to the normal collagen formation for the normal function of cartilage” because the latter made clear the role of collagen in the health benefit and indicated that Vitamin C only supported the maintainance of the normal function of cartilage rather than playing a role in its formation. Furthermore, we considered that the term “normal” should be retained in adapted wording as it made clear that the claim related to the normal functioning of the body and did not exaggerate the effects of the product or imply, for example, that Vitamin C improved the functioning of the cartilage. For similar reasons, we considered that the re-worded claim “support immune health” could suggest that Vitamin C assisted with the development of immune health, while the authorised claim “contributes to the normal function of the immune system” made clear that it related to the normal function of the immune system. We therefore considered that the reworded claims were unlikely to have the same meaning for consumers as that of the authorised health claims, and the ad had therefore breached the Code in that regard.
Notwithstanding the above, we understood that the Regulation required that health claims must only be attributed to the substance for which they had been authorised, and also not for the product itself. In the ad, the claim “Support cartilage formation and immune health” was linked to a footnote in the small print of the ad which stated "Vitamin C has also been added to support cartilage formation and immune health". We acknowledged, therefore, that the relevant footnote in the small print in the ad linked the health benefit to Vitamin C, and that this also appeared (un-signposted) within the text in the main body of the ad. However, we considered that the text suggested that turmeric provided the health benefit and Vitamin C was added to contribute further to that health benefit. We therefore considered the health benefit had not been attributed to the substance for which the health claim had been authorised.
We further noted that the claim “Support cartilage formation and immune health” appeared on the image of the product pack close to the name of the product “Opti-Turmeric”, which itself appeared close to the headline claim “Turmeric absorption unlocked”. We considered the main body of the ad would therefore be understood as attributing the health benefit to turmeric, or to the product Opti-Tumeric, rather than to the substance for which the health claim had been authorised. We therefore considered that the ad breached the Code on that basis too.
Because the ad had re-worded authorised health claims such that they would have a different meaning to customers and had not made clear that it was Vitamin C – not turmeric or the product itself – that provided the advertised health benefits, we concluded that the ad breached the Code. On that point, the ad 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.
(Food, food supplements and associated health or nutrition claims), 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 supplements and other vitamins and minerals).
2. Upheld
We considered that the claim “fast acting joint support” would be understood to be a health benefit of turmeric on the joints. The claim linked to a footnote in the ad’s small print which included the health claim, “Pending EC Claim ID4012 ‘helps maintain the health of joints and bones.’”. We acknowledged that this was currently listed as 'on hold’ by the European Food Safety Authority (EFSA) in a list with other botanical substances. However, the Regulation required that ‘on hold’ claims could only be used in advertising if they were also compliant with applicable existing national provisions, which meant that the claims needed to be substantiated by evidence as required by the CAP Code.
We noted the EFSA’s negative opinion provided by Healthspan, which stated that a cause and effect relationship had not been established between the consumption of Curcuma longa (turmeric) and the maintenance of normal joints and bones, on the basis of the evidence provided to EFSA. Healthspan had not provided any further evidence to the ASA in support of the claim. We therefore considered that Healthspan had not substantiated the claim “helps maintain the health of joints and bones”, thus it was in breach of the Code.
Notwithstanding the above, we understood that the Regulation required that health claims must be presented without exaggeration. We considered that the claim “fast acting joint support” included a claim about the speed of action which was not reflected in the on-hold claim “helps maintain the health of joints and bones”. We therefore considered the claim “fast acting joint support” to have exaggerated the on-hold claim on which it was based and concluded that the ad also breached the Code on that basis.
Because Healthspan did not provide evidence to substantiate the on-hold claim that turmeric “helps maintain the health of joints and bones”, and because the claim “fast acting joint support” exaggerated the on-hold claim, we concluded that the claims “fast acting joint support” and “helps maintain the health of joints and bones” breached the Code.
On that point, the ad 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),
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.
(Food, food supplements and associated health or nutrition claims), 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 supplements and other vitamins and minerals).
Action
The ad must not appear again in its current form. We told Healthspan Ltd to ensure that health claims were clearly attributed to the relevant substance. We told them to ensure they retained the meaning of any health claims if they reworded them, and did not exaggerate them. We also told them not to use on-hold claims unless they held adequate evidence that substantiated the claims.
.
