Background
Ads (a), (b) and (c) appeared in December 2020, and we therefore assessed them under the Code rules that applied at that time. Ads (d), (e), (f), and (g) appeared in January 2021, and we therefore assessed them under the Code rules interpreted in the light of changes in the background law resulting from the UK’s exit from the EU, as per CAP/BCAP’s statement on EU exit dated 22 December 2020.
Summary of Council decision:
Three issues were investigated, all of which were Upheld,.
Ad description
Seven posts on Jodie Marsh's Instagram account for JST Nutrition Ltd, a food supplement retailer, seen between 28 December 2020 and 11 January 2021:
a. The first post, seen on 28 December 2020, featured an image of three containers labelled “tonex”, “neptox”, and “hebex”, with a caption that stated “These are the three things I personally take every day … Tonex I take for burning fat … Hebex I take for my skin, hair and nails …”.
b. The second post, seen on 28 December 2020, featured an image of Jodie Marsh in a bikini, shown from the neck down, with a caption that stated “Do you suffer with IBS or bloating?? Try Neptox!! ...”.
c. The third post, seen on 29 December 2020, featured an image of Jodie Marsh with a caption that stated “People always say I don’t look 42. I personally think it’s down to good genes and Hebex – Hebex is my amazing collagen tablet. I take it for skin, hair and nails …”.
d. The fourth post, seen on 4 January 2021, featured an image of Jodie Marsh in a bikini with the same caption as ad (b).
e. The fifth post, seen on 5 January 2021, featured an image of Jodie Marsh in a bikini, shown from the neck down, with the same caption as ad (b).
f. The sixth post, seen on 5 January 2021, featured an image of Jodie Marsh in underwear with a caption that stated “I take Hebex every day. It’s a collagen tablet … I believe it gives me flawless skin. It also makes my hair and nails grow quicker”.
g. The seventh post, seen on 11 January 2021, featured an image of the same containers as ad (a) alongside a bowl of berries with a caption that stated “Everyone is always asking how my skin is so good. I believe it’s because I take Hebex every day. It’s a collagen that your body can actually process … and it also helps your hair and nails to grow quicker!! … I also take Tonex every day which is a fat burner … And I also take Neptox every day as I bloat a lot when I eat and I believe it helps stop this. People with IBS – try it!!!”.
Issue
The complainant challenged whether:
1. the health claims in ads (a) – (g) complied with the Code; and
2. the claims "Do you suffer with IBS or bloating?? Try Neptox!!!..." in ads (b), (d), and (e), and “Neptox … People with IBS – try it!!!” in ad (g) breached the Code.
3. The ASA challenged whether ads (a) to (g) were obviously identifiable as a marketing communications.
Response
JST Nutrition Ltd said that they believed the claims in the ads complied with the relevant Regulations but that they would check them to ensure compliance going forward. Jodie Marsh acknowledged receipt of the complaint, but did not provide a substantive response.
Assessment
The ASA was concerned by Jodie Marsh's lack of substantive response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to provide a substantive response to our enquiries and told them to do so in future.
1. Upheld
The ASA noted that according to EC Regulation 1924/2006 on nutrition and health claims made on foods (the Regulation), which was reflected in the CAP Code, only health claims listed as authorised on the EU Register of nutrition and health claims made on foods (the EU Register) were permitted in marketing communications published on or before 31 December 2020. From 1 January 2021, only health claims authorised on the Great Britain nutrition and health claims (NHC) register (the GB Register) were permitted in marketing communications.
We noted therefore that any health claims made in ads (a) to (c) must be listed as authorised on the EU Register, whereas any health claims made in ads (d) to (g) must be listed as authorised on the GB Register. The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food, drink or ingredient and health. We considered the claims “Tonex … for burning fat”, “Tonex … is a fat burner”, “Hebex … for my skin, hair and nails” and “Hebex … helps your hair and nails to grow quicker” to be specific health claims for the purposes of the Code. However, we had not seen any evidence which demonstrated that those claims were authorised on either the EU Register or the GB Register, or that JST Nutrition’s products met the conditions of use associated with any authorised claims. Because the ads made specific health claims that were not authorised on the EU Register or the GB Register, we concluded they breached the Code.
On that point, ads (a)-(g) 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 consumers would understand from ads (b), (d), (e) and (g), and in particular the claims "Do you suffer with IBS or bloating?? Try Neptox!!!" and “Neptox … People with IBS – try it!!!”, which featured explicit references to Irritable Bowel Syndrome (IBS), that taking the product could alleviate the symptoms of IBS, and therefore treat that condition. We therefore considered the ads made disease treatment claims for a food supplement and concluded that they breached the Code.
On that point, ads (b), (d), (e), and (g) breached CAP Code (Edition 12) rules 15.6 and 15.6.2 15.6.2 Claims that state or imply a food prevents, treats or cures human disease. Reduction-of disease-risk claims are acceptable if authorised by the European Commission (Food, food supplements and associated health or nutrition claims).
3. Upheld
The CAP Code stated that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context. We understood that Jodie Marsh owned JST Nutrition, and so there was a commercial relationship between them. We also understood that the posts fell within the remit of the CAP Code. We considered that they were therefore jointly responsible for ensuring that promotional activity conducted on Ms Marsh’s account promoting JST Nutrition was compliant with the CAP Code. We noted that the posts did not feature a label such as “#ad” identifying them to consumers as marketing communications. We therefore concluded that the posts were not obviously identifiable as marketing communications and as such breached the Code.
On that point, ads (a) to (g) breached CAP Code (Edition 12) rule 2.1 2.1 Marketing communications must be obviously identifiable as such. (Recognition of marketing communications).
Action
The ads must not appear again in the form complained about. We told JST Nutrition and Jodie Marsh to ensure that any specific health claims made in their future advertising were authorised on the GB Register and met the associated conditions of use, and to ensure that their future ads did not state or imply that their food supplements could prevent, treat or cure human disease. We also told them to ensure that their future ads were obviously identifiable as marketing communications, and that identifiers such as #ad should be clearly and prominently displayed. We referred the matter to CAP’s Compliance team.
