Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A paid-for Instagram post, posted by @wearenothingfishy, a retailer of food supplements, seen on 3 April 2024, showed a hand holding a jar of food supplements labelled “Omega 3 – Plant based Softgels”. A testimonial attributed to “Karl” stated “I was hard hit with COVID. Now my hair’s growing back & the brain fog started to lift”. The jar was surrounded by captions, each with a “+” sign and a different emoji symbol, which stated respectively “Focus”, “Joint Relief”, “Energy” and “Mental Health”. A “SHOP NOW” button appeared at the bottom of the post.
Issue
1. The complainant challenged whether the claims that the Omega 3 food supplement could help with Covid-19 and/or Long Covid and their symptoms, “joint relief” and “mental health” were claims to treat or cure human disease that were in breach of the Code.
2. The ASA challenged whether the ad also included health claims which were in breach of the Code.
Response
1. & 2. NothingFishy Ltd did not respond to the ASA’s enquiries.Assessment
1. Upheld
The ASA was concerned by NothingFishy’s lack of 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 respond promptly to our enquiries and told them to do so in future.
The CAP Code prohibited claims that stated or implied a food could prevent, treat or cure human disease.We considered the testimonial attributed to “Karl” which stated “I was hard hit with COVID. Now my hair’s growing back & the brain fog started to lift” implied that “Karl” had experienced hair loss and “brain fog” as symptoms of Covid-19 and/or Long Covid. In the context of the ad, this suggested that the Omega 3 food supplement was able to treat and/or relieve those symptoms of Covid-19 and Long Covid.
The ad also featured the claims “focus”, “joint relief”, “energy” and “mental health” in the captions surrounding the jar of the product. In the context of the testimonial’s reference to “COVID”, we considered those claims were likely to be understood by a significant proportion of consumers as referring to symptoms of Covid-19 and Long Covid, such as “brain fog”, joint aches and pains, low energy and poor mental health. We considered that consumers would therefore understand those claims to be that the Omega 3 supplement would treat these specific symptoms of Covid-19 and Long Covid.
We further considered that some consumers may understand the claims “joint relief” and “mental health” to mean that the supplement could also help with joint conditions and mental health conditions that were not associated with Covid-19 or Long Covid.
The ad included implied claims that the Omega 3 supplement could treat symptoms of Covid-19 and/or Long Covid and treat joint conditions and mental health conditions not associated with Covid-19 or Long Covid. However, such claims were prohibited for food and food supplements. We therefore concluded the ad was in breach of 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.In addition to the interpretation of the claims set out in point 1 above, we considered other consumers may interpret the claims “focus” and “energy” to mean that the Omega 3 supplement could provide health benefits outside of a COVID context, such as helping with cognitive function and energy levels. These claims were therefore health claims. However, there were no health claims authorised on the GB Register in relation to Omega 3. The claims therefore breached the Code.
On that point the ad breached CAP Code (Edition 12) rules 15.1 and 15.1.1 (Food, food supplements and associated health or nutrition claims) and 15.7 (Food supplements and other vitamins and minerals).
Action
The ad must not appear again in the form complained of. We told NothingFishy Ltd to ensure their ads did not make claims that a 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 and complied with the conditions of use for those claims. We referred the matter to CAP's Compliance team.
