Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A website and leaflet featuring products from Medibee, seen in April 2016, included a large number of claims about their various food products:
a. The website www.medibee.co.uk included a page headed, “Propolis - the bee’s ‘antibacterial jewel’”. Further text stated “You ask - what is Propolis? It … has been used throughout time for its germ killing ability. The bees paint the inside of their hives with this substance - Propolis - which renders the beehive the most sterile place in the natural world, has been used in The Napoleonic Wars as well as on the battlefields of WWI and WWII. Medibee’s Propolis is available as Liquid Essence to be taken orally … Propolis Essence … Why not take several drops on cold, winter days? … Propolis Capsules Taken by every age group to help their daily lifestyle, especially those who use their arms and legs in their daily jobs or professions. Make life feel easier for you!”
b. A page on the website headed, “Royal Jelly - the most highly esteemed food of the bees” included text which stated “Royal Jelly is unique in that it cannot be produced artificially and is given to the Queen Bee throughout her life. She lives forty times longer than the millions of worker bees could Royal Jelly be the answer? Is this why many beekeepers are amongst the longest living people in the world? … Royal Jelly contains acetylcholine needed to transmit messages throughout our nervous system. This is under produced as we mature and become older no need to say any more”.
c. A page headed “Bee Pollen Sprinkles” included text which stated, “The dietary jewel of the beehive! … Bee fuelled by the great nutritional content of Sprinkles - great protein, iron and superb energy value. LOW LOW CHOLESTEROL - LOW FAT Sprinkle 1-2 teaspoonfuls daily … Take note - in research, it has been found that mice can survive on bee pollen and water alone for several generations. Wow!”
d. A page headed “Pollen and You!” included text which stated, “Costly for you - in health, time and performance … Medibee Famous Bee Pollen Capsules - taken by thousands upon thousands of sufferers … You will not believe it until you have tried the oldest natural remedy on the planet. Order as soon as possible (during or even before symptoms appear) and take continuously throughout until the end of October or until flowers cease to be produced by plants”.
e. A page headed “Bee Activ - specially formulated bee pollen a rich source of nature’s nutrients!” included text which stated, “You ask - what can it do for me? Not only has bee pollen an effect on the daily energy requirement, but taken at your most strenuous and highest exertion point, rely on bee pollen for its generous constituents of calcium and iron taken as nature intended. Footballers, squash players, marathon runners or simply those with a high active lifestyle insist on bee pollen as part of their daily diet”.
f. A page headed “Instant energ-ee in your pocket - from Medibee” included text which stated, “Bee Pollen in a vegetable capsule with added caffeine, which is found in your daily coffee and tea and can help you restore mental alertness … Bee Pollen is unique - it is the natural powerhouse of the beehive - and combined with caffeine - ensures the perfect balance for you and me-e! This is just the start - for where caffeine finishes, rely on bee pollen for its calcium and iron constituents which bees find highly restorative”.
g. A page headed “Bee-Better - a pollen and propolis mixture, constitutes a great nutritional extra bees avidly seek out pollen to refresh their energy levels and replace their cellular content of calcium and iron” included text which stated, “Stressful lifestyles and hectic demands on our time can take its toll. Natural bee pollen contains every necessary ingredient for our bodily survival - with added propolis the bees own antiseptic”.
h. The leaflet was entitled “The beehive, nature’s golden healer” and text on the front page stated, “MediBee … The Home of Bio Active Honeys & Exceptional Beehive Products” next to an image of a jar of honey with text on the label which stated “Bee Bio-Active antibacterial honey”. Further text included “Propolis Capsules … depended upon by painters, carpet fitters etc whose joints and muscles are aching and stiff. In China propolis is used regularly for the immune system”, “Royal Jelly…taken by Kings and Queens and the rich and famous for long life, great energy and youthful skin. The Japanese have the lowest incidence of Alzheimers … [is this] due to Royal Jelly or green tea?” and “BEE ACTIV … Bee pollen and propolis for your metabolism”.
Issue
Derbyshire County Council Trading Standards Division challenged whether the ads:
1. contained claims which stated or implied that a food prevented, treated or cured human disease;
2. contained general health claims which were not accompanied by a specific authorised health claim; and
3. contained unauthorised health and nutrition claims.
Response
1. – 3. Medibee Ltd said that if their products did not have efficacy they would be out of business. They referenced testimonials on their website and advice they had received from Trading Standards, although they did not provide further details about which claims they understood Trading Standards considered to be acceptable. They provided a copy of a letter from the Medicines and Healthcare products Regulatory Agency (MHRA), dated 22 December 2005, which provided advice on whether certain specific claims and imagery were, or were not, acceptable.
Medibee felt that some claims in their product names were acceptable under Article 28(2) of Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), which stated that "Products bearing trademarks or brand names existing before 1 January 2005 which do not comply with this Regulation may continue to be marketed until 19 January 2022 after which time the provisions of this Regulation shall apply”. They forwarded a copy of an email they had sent to Derbyshire County Council Trading Standards in November 2015 in which they stated their arguments as to why they believed the product name “Bee Bio-Active” qualified for the transitional measure stated in Article 28(2). That email stated that “Bee Bio-Active” was registered as a trademark in 2007 but was being used as an unregistered trademark from at least 2003 and that they held evidence for that.
Medibee provided a breakdown of the nutritional composition of “Bee Pollen”, but did not explain where that information came from or how it related to the nutritional content of the specific products advertised. They stated that there was 17.1 g per 100 g of protein in pollen, although the nutritional composition information they provided for “Bee Pollen” provided different figures.
Assessment
1. Upheld
The ads were subject to CAP Code rule 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 which reflected the requirement at Article 7(3) of Regulation (EU) No 1169/2011 on the provision of food information to consumers (the FIC) that “food information shall not attribute to any food the property of preventing, treating or curing a human disease, nor refer to such properties”.
Ad (a), for Medibee’s product “Essence of propolis” drops, included claims that propolis had “antibacterial” properties, “germ killing ability”, that it rendered beehives “the most sterile place in the natural world” and that it had been “used in the Napoleonic Wars as well as on the battlefields of WWI and WWII”. Ad (h) included an image of a product named “Bee Bio-Active antibacterial honey” and the claim “Propolis…The bees natural anti-bacterial”. Ad (g) stated that the advertiser’s “Bee-Better” product had “added propolis - the bees own antiseptic”. The ASA considered those claims would be interpreted by consumers to mean that the products, or substances in those products, killed harmful bacteria and germs and therefore could prevent those who consumed the products from contracting diseases caused by such bacteria/germs, and treat or cure diseases caused by such bacteria/germs. We therefore considered that the claims constituted claims to prevent, treat or cure human disease and concluded that ads (a), (g) and (h) breached the Code.
The Regulation allowed trademarks, brand names and fancy names appearing in advertising for a food which may be construed as a nutrition or health claim to be used without being authorised, provided that they were accompanied by a related nutrition or health claim in the advertising (or, if covered by the transitional measure referenced by Medibee, such trademarks and brand names could be used without being accompanied by a related nutrition or health claim until 2022). However, the Regulation did not include provision for claims to prevent, treat or cure diseases to be used as trademarks, brand names or fancy names and we therefore understood that Article 7(3) of the FIC applied. We concluded the use of the term “antibacterial” in the product name “Bee Bio-Active antibacterial honey” was therefore in breach of the Code.
Ad (d), for Medibee’s “Pollen+ capsules” included references to pollen and how some people were affected by it, including listing symptoms of hayfever: “sneezing, runny nose, swollen eyes etc”. Further text stated, “Bees do not suffer from hayfever or other allergies” and “Medibee Famous Bee Pollen Capsules - taken by thousands upon thousands of sufferers … You will not believe it until you have tried the oldest natural remedy on the planet. Order as soon as possible (during or even before symptoms appear) and take continuously throughout until the end of October or until flowers cease to be produced by plants”. We considered that consumers would interpret such claims to mean that the product, or substances in the product, could prevent, treat or cure hayfever. Because such claims to prevent, treat or cure human disease were prohibited, we concluded ad (d) breached the Code.
Ad (h) was titled “The Beehive - Nature’s Golden Healer”. We considered consumers would interpret the claim to mean that the various “beehive” products advertised in the leaflet had healing properties and could therefore treat or cure human diseases. The ad also stated, in relation to Medibee’s “Royal Jelly” product, that “The Japanese have the lowest incidence of Alzheimers[sic]. Research asks if this is due to Royal Jelly or green tea?”. In the context of an ad for a Royal Jelly product we considered consumers would interpret that to be a claim that Royal Jelly could prevent the disease Alzheimer’s. We concluded ad (h) was also in breach of the Code because it included claims that food products could prevent, treat or cure human disease.
On this point, ads (a), (d), (g) and (h) breached CAP Code (Edition 12) rule 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).
2. Upheld
The Regulation stated that only health claims listed as authorised on the EU Register of nutrition and health claims made on foods were permitted in marketing communications. References to general benefits of a nutrient or food for overall good health or health-related well-being were acceptable, if they were accompanied by a specific authorised health claim.
We considered that consumers would understand the following claims to be references to the general benefits of the products for overall good health or health-related well-being: “Taken by every age group to help their daily lifestyle, especially those who use their arms and legs in their daily jobs or professions. Make life feel easier for you!” in ad (a), in relation to the product “Propolis Capsules”; “The dietary jewel of the beehive! … Bee fuelled by the great nutritional content of Sprinkles … Take note - in research, it has been found that mice can survive on bee pollen and water alone for several generations. Wow!” in ad (c), for the product “Honeybee Pollen Sprinkles”; “a rich course of nature’s nutrients!”, “Not only has bee pollen an effect on the daily energy requirement” and “Footballers, squash players, marathon runners or simply those with a high active lifestyle insist on bee pollen as part of their daily diet” in ad (e), in relation to the product “Bee-Active”; “constitutes a great nutritional extra”, “Stressful lifestyles and hectic demands on our time can take its toll. Natural bee pollen contains every necessary ingredient for our bodily survival” in ad (g), in relation to the product “Bee-Better”; and “Taken by Kings and Queens and the rich & famous for long life, great energy and youthful skin”, in ad (h), in relation to the product “Royal Jelly”.
Medibee did not identify any authorised health claims in ads (a), (c), (e), (g) or (h) which accompanied the general health claims identified above. Because the general health claims were not accompanied by specific authorised health claims, we concluded the claims were in breach of the Code.
In addition, we considered that the product names “Bee Activ” and “Bee-Better” would be understood by consumers as references to the general benefits of the products for overall good health or health-related well-being. We also considered that, once the term “antibacterial” had been removed from the product name “Bee Bio-Active antibacterial honey”, the name “Bee Bio-Active honey” would be understood as a reference to the general benefit of the product of overall good health or health-related well-being.
As noted at Point 1, such names which may be construed as health claims could be used without being authorised provided they were accompanied by a related nutrition or health claim. Medibee had referenced a transitional measure which exempted certain products from that requirement, but they had not provided any evidence which demonstrated that their products were eligible for that exemption. We therefore considered that ads which featured those products (ads (e), (g) and (h)) should include an authorised health or nutrition claim to accompany the product names. Because they did not, we concluded the product names also breached the Code.
On this point, ads (a), (c), (e), (g) and (h) breached CAP Code (Edition 12) rule 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. (Food, food supplements and associated health or nutrition claims).
3. Upheld
As referenced above, only health claims which were authorised on the EU Register were permitted in ads promoting foods. The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food and drink or ingredient and health. Marketers must also ensure that they met the conditions of use associated with authorised claims. They 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. Also that the aim of the rewording by marketers was to aid consumer understanding and took into account factors such as linguistic and cultural variations and the target population.
Ad (b) included the claim “Royal Jelly contains acetylcholine - needed to transmit messages throughout our nervous system. This is under produced as we mature and become older - no need to say any more”, which we considered consumers would understand to be a health claim that consuming acetylcholine helped the nervous system work normally. However, we noted there were no authorised claims on the EU Register for the substance acetylcholine.
Ad (e) included the claim “… taken at your most strenuous and highest exertion point, rely on bee pollen for its generous constituents of calcium and iron - taken as nature intended”, which we considered consumers would interpret as a health claim that calcium and iron contributed to better physical performance in the context of high intensity exercise. We noted the claim “… contributes to normal energy-yielding metabolism” was authorised on the EU Register in relation to both iron and calcium, and that the claim “Calcium contributes to normal muscle function” was also authorised. However, we considered the advertising claims exaggerated the meaning of those authorised claims, and therefore the advertising claim was not an acceptable adaptation of the authorised claims. In any case, Medibee had not provided evidence which showed that the “Bee-Activ” product contained sufficient quantities of iron or calcium for any of the authorised claims for calcium or iron to be used in its advertising.
Ad (f) included the claim “Bee Pollen in a vegetable capsule with added caffeine, which … can help you restore mental alertness”, which we considered consumers would understand to be a health claim about caffeine’s effects on mental performance. However, there were no authorised health claims for caffeine on the EU Register.
Ad (h) included the claims “Propolis Capsules Depended upon by painters, carpet fitters, nurses, librarians, supermarket staff etc - whose joint and muscles are aching and stiff”, “In China, propolis is used regularly for the immune system” and “BEE ACTIV … Bee pollen and propolis for your metabolism”, which we considered consumers would understand to be health claims that propolis and/or bee pollen helped to, respectively, support normal functioning of joints and muscles, the immune system and the metabolism. However, there were no authorised health claims for propolis or bee pollen on the EU Register.
Because the health claims in ads (b), (e), (f) and (h) were not authorised for the products or substances to which the health benefit was attributed, or exaggerated the meaning of authorised claims for the referenced substances, we concluded they were in breach of the Code.
The Regulation also required that only nutrition claims listed in its updated Annex could be used in marketing communications, and products or ingredients must comply with the relevant conditions of use for permitted nutrition claims. The Code defined nutrition claims as those that stated, suggested or implied that a food had particular beneficial nutritional properties due to the energy, nutrients or other substances it contained or did not contain, or contained in reduced or increased proportions.
Ad (f), for the “Redbee” product, included the claim “rely on bee pollen for its calcium and iron constituents” and ad (g), for the “Bee-Better” product, included the claim “bees avidly seek out pollen to … replace their cellular content of calcium and iron”. We considered consumers would understand those claims as having a meaning equivalent to the permitted nutrition claim “source of [mineral]”, which required that the product must contain at least 15% of the nutrient reference value for those minerals per 100 g of the product.
Ad (c), for the “Honeybee Pollen Sprinkles” product, included the claim “great … iron … value” and ad (e), for the “Bee-Activ” product, included the claim “generous constituents of calcium and iron” as referenced above. We considered consumers would understand those claims as having a meaning equivalent to the permitted nutrition claim “high in [mineral]”. This required that the product must contain at least twice the amounts of those minerals needed for a “source of” claim. We similarly considered that consumers would understand the claim “great protein … value”, which also appeared in ad (c), to have an equivalent meaning to the permitted nutrition claim “high in protein”, which required that at least 20% of the energy value of the food must be provided by protein.
Because Medibee had not provided us with evidence demonstrating that the “Redbee”, “Bee-Better”, “Honeybee Pollen Sprinkles” or “Bee-Activ” products met the conditions of use for the relevant “source of calcium/iron”, “high in calcium/iron” and “high in protein” claims, we concluded the nutrition claims in the ads breached the Code.
Ad (c) also stated that the “Honeybee Pollen Sprinkles” product had “superb energy value”. We considered that claim would be understood by consumers to mean that the product was high in energy. Ad (f), for the “Redbee” product, stated “Instant energy-ee in your pocket”, and ad (g), for the “Bee-Better” product, stated “bees avidly seek out pollen to refresh their energy levels”. We considered those claims would be understood by consumers to mean that those products contained energy. However, the only permitted nutrition claims relating to energy were “Low energy”, “Energy-reduced” and “Energy-free”. Ad (c) also included the claim “LOW LOW CHOLESTEROL”. However, there were no permitted nutrition claims relating to the cholesterol content of foods. Because the advertising claims relating to the energy and cholesterol content of the products were not permitted, we concluded they breached the Code.
Ad (c) also stated that the “Honeybee Pollen Sprinkles” product was “LOW FAT”, which was a permitted nutrition claim that could be used for products which contained no more than 3 g of fat per 100 g. Because Medibee had not provided evidence that the “Honeybee Pollen Sprinkles” product met those conditions of use, we concluded the nutrition claim breached the Code.
Because the nutrition claims in ads (c), (e), (f) and (g) were not permitted, or we had not seen evidence that products to which permitted nutrition claims were attributed met the associated conditions of use, we concluded they were in breach of the Code.
On this point, ads (b), (c), (e), (f), (g) and (h) 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).
Action
The ads must not appear again in their current form. We told Medibee Ltd to remove claims to prevent, treat or cure human disease from their advertising. We also told them to remove unauthorised health claims, and general health claims which were not accompanied by a specific authorised health claim. We told them not to make references to general benefits of food for overall good health or health-related well-being in brand names unless those claims were accompanied by a permitted health or nutrition claim. We also told them to remove non-permitted nutrition claims and permitted nutrition claims for which they did not hold evidence that their products complied with the associated conditions of use.
