Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
THIS RULING REPLACES THE RULING PUBLISHED ON 19 JUNE 2024. THE ADVERTISER DID NOT CORRESPOND WITH THE ASA DURING THE INVESTIGATION BUT ON INDEPENDENT REVIEW PROVIDED EVIDENCE TO CONFIRM THAT PAUL O’CONNELL IS A REGISTERED DOCTOR. POINT THREE OF THIS RULING HAS THEREFORE BEEN AMENDED TO ADDRESS THIS BUT THE DECISION TO UPHOLD REMAINS UNCHANGED.
Ad description
An ad in a content discovery network and a website for newnutritionsecrets.com seen on 7 January and 6 April 2024:
a. The ad in the content discovery network, which appeared on a news website, showed a photograph of someone sitting in a chair with a small metal device resembling a comb placed on top of their unclothed upper leg. Text stated, “Joint Doctor Begs Seniors To ‘Repair’ Joints With This Tip – NUTRITIONAL SCIENCE LTD – Sponsored”. The photograph contained a link.
b. The link went to the advertiser’s own website, newnutritionsecrets.com. Content which was presented as an online advertorial (with the heading “Advertorial” in small text) featured a main heading which stated, “NHS Arthritis Expert Reveals #1 ‘Joint-Destroying’ Mistake Brits Make Every Morning”. Text underneath stated, “'Your joints can heal themselves at any age' – That’s according to Dr Paul O’Connell, the NHS’s leading joint expert […] Human cartilage can regrow, just like hair and nails. And this ‘self-healing’ mechanism can reverse YEARS of arthritis and joint damage”.
A link in the advertorial went to another page on the same website. The page featured a photograph of a man with the caption “Dr. Paul O’Connell - GP & Rehabilitation Engineer,” a 20-minute video in which Dr O’Connell discussed the Activ8 Joint Complete supplement and a “NEXT STEP” tab.
The tab went to a survey on the same website and then a purchase page for “Activ8 Joint Complete”. Text stated, “Relieves soreness, stiffness, and discomfort – Prevents inflammation, damaged cartilage, and bone decay – Facilitates joint repair & recovery – Improves movement and flexibility”.
Issue
The ASA received two complaints.
One complainant challenged whether:
1. the claims that Activ8 Joint Complete could treat or cure human disease were in breach of the Code; and
2. the specific health claims in the ads, which required authorisation on the Great Britain Register of nutrition and health claims, breached the Code.
3. A second complainant challenged whether the claim that Dr Paul O’Connell was “… the NHS’s leading joint expert …” was misleading and could be substantiated.
Response
1., 2. & 3. Nutritional Sciences Ltd did not respond to the ASA’s enquiries during the investigation.
Assessment
1. Upheld
The ASA was concerned by Nutritional Sciences Ltd’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.1. UpheldClaims which stated or implied that a food could prevent, treat or cure human disease were prohibited under the CAP Code.
In the context that ad (a) was addressed to "Seniors", we considered consumers were likely to understand the claim “'Repair' Joints With This Tip” as a reference to treating or curing the degeneration of cartilage associated with ageing, as well as treating or curing conditions such as arthritis.
Having clicked through from ad (a), and in the context of text in ad (b) which referenced an "Arthritis Expert", we considered that the claims: “… simply take three capsules with your main meal and the powerful active ingredients will immediately get to work restoring your joints” and “... if you don’t notice fewer daily aches and pains, reduced stiffness, increased flexibility and freer movement, better recovery after exercise and all-round healthier, younger-feeling body”, made in the video would also likely be understood to be references to treating or curing arthritis and other degenerative joint conditions. Additionally the claim "this 'self-healing' mechanism can reverse YEARS of arthritis and joint damage" would also be understood in the same way.Having clicked through again to the website purchase page, we considered consumers would also understand the claims, “Relieves soreness, stiffness, and discomfort – Prevents inflammation, damaged cartilage, and bone decay – Facilitates joint repair & recovery – Improves movement and flexibility” on that page to be references to treating or curing arthritis and other degenerative joint conditions, as well as joint pain and inflammation.
While ad (a) did not attribute the claims to a specific product or service, we considered that, because it linked through to the website where the Activ8 Joint Complete food supplement was sold, it was an ad for that supplement. We considered both ads therefore included stated or implied claims that Activ8 Joint Complete could treat or cure arthritis and other degenerative joint conditions, the degeneration of cartilage associated with ageing and symptoms such as joint pain and inflammation.
Because those were claims that a food supplement could prevent, treat or cure human disease, we concluded that they breached the Code.
On that point ads (a) and (b) 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 applicable register, which in this case was the Great Britain nutrition and health claims register (the GB NHC Register), were permitted in marketing communications for foods. The CAP Code defined health claims as those which stated, suggested or implied a relationship between a food or ingredient and health.As discussed in Point 1, we considered that the ads included a range of claims that in the context in which they were presented, stated or implied that the supplement could help to treat or cure a range of joint conditions. The ads also included claims which could be understood as more limited claims that the supplement could support physiological functions that were beneficial to health.
For example, we considered that the claims: “… greater flexibility, recovery and range of motion” and “supports healthy cartilage”, made in the video implied a relationship between the Activ8 Joint Complete supplement and the health of joints and cartilage, and in some contexts would be specific health claims for the purposes of the Code. Nutritional Sciences therefore needed to show that the claims were authorised on the GB NHC Register and that they met the conditions of use associated with the claims.
Because Nutritional Sciences had not done that, we concluded that the claims breached the Code.On that point ad (b) 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).
3. Upheld
We considered consumers would interpret “Dr Paul O’Connell, the NHS’s leading joint expert” to mean Paul O’Connell was considered by the NHS to be their leading authority in conditions affecting the joints. As such, Nutritional Sciences would be expected to hold evidence to support that. However, Nutritional Sciences had supplied no evidence to support the claim.
But even if Nutritional Sciences had been able to supply evidence that Dr Paul O’Connell was the NHS’ leading authority in conditions affecting the joints, the CAP Code stated that health claims that referred to the recommendation of an individual health professional were not acceptable in marketing communications for food supplements. Because the ads attributed a range of health claims, and claims that the supplement could treat or cure human disease, to a "Doctor" or "Dr Paul O'Connell" specifically, or featured him directly making such claims, we considered they also breached the Code on that basis.
Because we had not seen evidence that showed Dr Paul O’Connell was considered by the NHS to be their leading authority in conditions affecting the joints, and because the ads included health claims that referred to a recommendation by an individual health professional, we concluded that they breached the Code in both those regards.
On that point the ads breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 15.6.3 (Food, food supplements and associated health or nutrition claims).
Action
The ads must not appear again in the forms complained of. We told Nutritional Sciences Ltd not to make claims which stated or implied that a food or drink product, or a food supplement, could prevent, treat or cure human disease or to make health claims which referred to the recommendation of an individual health professional in their marketing communications for food supplements. They must also ensure that any specific health claims made in relation to foods and food supplements were authorised on the GB NHC Register.
We referred the matter to CAP’s Compliance team.
CAP Code (Edition 12)
3.1 3.7 15.1 15.1.1 15.6 15.6.2 15.6.3 15.7
