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 from Novomins Nutrition, seen on 27 March 2024, stated “Night-Time Gummies. A happier & healthier you […]”. Further claims included “Prepare for a goodnight’s [sic] sleep”, “Reduction in tiredness and fatigue”, “Deeper Sleep”, “Less Stress” and “Less Anxiety”.
Issue
1. The ASA challenged whether the claim “less stress” and “less anxiety” implied that the gummies 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 “reduction in tiredness and fatigue”, “Prepare for a goodnight’s [sic] sleep”, and “deeper sleep”; and3. the general health claim “a happier & healthier you”,
Response
1. Innocent Health Ltd t/a Novomins Nutrition provided clinical studies which they believed showed health benefits of magnesium, vitamin B12, inositol and L-tryptophan, and their effects on stress and anxiety. However, they said they had removed claims regarding stress and anxiety from advertising across their Meta platforms that were in breach of the CAP Code.
2. With regard to the specific health claim “reduction in tiredness and fatigue” they believed the claim was supported by health claims relating to the ingredients niacin and vitamin B12, which were authorised in the Great Britain nutrition and health claims register (the GB Register). They believed the gummies complied with the conditions of use associated with those authorised health claims, which required that the food provide 15% of the reference intake for the relevant substance. They said that per serving, the gummies contained 3 mg of niacin, which was 19% of its reference intake, and 6 µg of vitamin B12, which was 240% of its reference intake.
However, they accepted the claims “prepare for a goodnight’s [sic] sleep” and “deeper sleep” should not have been stated in the ad, and had been removed.3. They said the use of the general health claim “A happier & healthier you”, complied with the Code, because it was accompanied by the authorised specific health claim “reduction in tiredness and fatigue”.
Assessment
1. Upheld
The CAP Code prohibited claims which stated or implied a food could prevent, treat or cure human disease.The ASA considered the claim “less anxiety” would be understood by consumers as a claim to prevent, treat or cure anxiety. We further considered that in the context of the ad, the claim “less stress” would also be interpreted by consumers as an implied reference to anxiety and its symptoms. We therefore considered that the claims to lessen stress and anxiety were claims that a food supplement could prevent, treat or cure disease. We concluded that they 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. Any authorised health claims made in an ad must meet the associated conditions of use.
The ad claimed that the gummies could help people “Prepare for a goodnight’s [sic] sleep”, and have a “deeper sleep”. We considered those claims were specific health claims for the purposes of the Code because they implied that the gummies provided the beneficial health effect of aiding the quality of sleep. However, there were no authorised health claims relating to sleep quality on the GB Register. The claims “Prepare for a goodnight’s [sic] sleep” and have a “deeper sleep” therefore breached the Code.
The claim “contributes to the reduction of tiredness and fatigue” was authorised on the GB Register in relation to both niacin and vitamin B12. We understood that the product contained sufficient quantities of both of those vitamins to meet the conditions of use for the 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. 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 the phrasing “contributes to” in the authorised claims was important in conveying their full meaning. It made clear that the nutrient named in the claim was only one of a number of nutrients that were involved in providing the stated beneficial physiological effect. We also considered that in the absence of the wording “contributes to”, consumers were likely to interpret the claim “reduction in tiredness and fatigue” as absolute, and so we considered it exaggerated the meaning of the authorised health claim.
Additionally, health claims in ads must be clearly attributed to the specific nutrient named in the authorised claim in order to reflect its full meaning. However, the claim in the ad did not attribute the health claim specifically to either niacin or vitamin B12 and instead implied that it related to the product as a whole. For those reasons we considered the claim that the product caused a “reduction in tiredness and fatigue” did not accurately reflect, and exaggerated, the wording of the authorised health claims for niacin and vitamin B12.
We therefore concluded that the health claims “Prepare for a goodnight’s [sic] sleep”, “deeper sleep” and “reduction in tiredness and fatigue” were in breach of 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 claim “unlock a stronger body and state of mind” which we considered to be a general health claim for the purposes of the Code, because it made a general claim for good health and well-being. Because that claim was not accompanied by a specific authorised health claim that complied with the Code, we concluded that it also breached the Code.On that point, the ad breached CAP Code (Edition 12) rule 15.2 (Food, food supplements and associated health or nutrition claims).
Action
The ad must not appear again in the form investigated. We told Innocent Health Ltd t/a Novomins 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, complied with the conditions of use for those claims, and had the same meaning as the authorised claim. We told them that any general health claims must be accompanied by a relevant authorised specific health claim that complied with the Code.
BCAP Code
CAP Code (Edition 12)
15.6 15.6.2 15.1 15.1.1 15.7 15.1 15.2
