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
Two paid-for Facebook ads from Vitality Greens, for the VitaShroom Gummies food supplement:
a. A The first paid-for Facebook ad from Vitality Greens, seen on 27 March 2024, stated “Elevate Your Life with VitaShroom Gummies! Unlock your full potential, crush stress, and ignite your energy naturally with every delicious bite. [muscle emoji] Discover the secret to sharper focus, youthful vitality, and robust immunity. Your journey to peak wellness starts here – find out how these tiny gummies can transform your life today! #VitaShroomMagic”.
b. The second ad, seen in late May 2024, stated in the caption “Feeling foggy and forgetful? Lion’s Mane to the rescue. This superstar mushroom is known for its potential to support cognitive function, focus, and memory. Imagine tackling your workday with a sharper mind! […] packed with Lion’s Mane, making it easy to support your brain health […]. Ready to unlock your mental potential?”. A video included shots of the product and the on-screen text “KNOWING THAT 2 OF THESE A DAY CAN LITERALLY REGROW BRAIN CELLS [brain emoji]”.
Issue
1. The ASA challenged whether the claim in ad (a) that the gummies could “crush stress” implied that the product could prevent, treat or cure human disease, which was prohibited by the Code.
2. The ASA and a member of the public challenged whether the ads included specific health claims and general health claims that breached the Code.
3. The ASA also challenged whether Turkey Tail mushroom, an ingredient in VitaShroom Gummies, had the relevant authorisation for marketing, because we understood it was a ‘novel food’.
Response
1., 2. & 3. Person(s) unknown t/a Vitality Greens did not respond to the ASA’s enquiries.Assessment
Upheld
The ASA was concerned by Person(s) unknown t/a Vitality Greens’ failure to provide their full name and geographical business address, which was a breach of CAP Code (Edition 12) rule 1.7.1 (Compliance). We reminded them of their responsibility to provide this information to the ASA or CAP without delay if requested.
The ASA was also concerned by Vitality Greens’ 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. Upheld
The CAP Code prohibited claims which stated or implied a food could prevent, treat or cure human disease.The ASA considered the claim “crush stress” in ad (a) was likely to be understood by consumers to be an implied reference to the mental health condition anxiety and its symptoms. We therefore considered that the claim was one that a food supplement could prevent, treat or cure disease. We concluded that it therefore breached the Code.
On that point, ad (a) 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.
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. They could be made in relation to foods only if they were accompanied by a relevant specific, authorised health claim.Ad (a) included the claims “ignite your energy” and “robust immunity” about the VitaSroom Gummies supplement. Those were claims to provide the health benefits of increasing energy levels and immune function, which were specific health claims.
Ad (a) also included the claim “discover the secret to sharper focus” about the VitaShroom Gummies supplement. Ad (b) included claims that the Lion’s Mane mushroom in the same supplement could help people who were “Feeling foggy and forgetful”, and that it was “known for its potential to support cognitive function, focus, and memory”, would “unlock […] mental potential” and provide “[…] a sharper mind”. We considered consumers would understand those claims to mean that the VitaShroom Gummies Supplement, and the Lion’s Mane mushroom in it, could help with various aspects of mental performance and cognitive function. Ad (b) also stated that the supplement could “LITERALLY REGROW BRAIN CELLS” which we considered consumers would interpret as a claim to help brain function. Claims that a supplement or its ingredients could help with mental performance, cognitive function and brain function were specific health claims.Ad (b) also included the claim “support your brain health” which we considered was a more general claim to support the overall health of the brain. That claim was therefore a general health claim for the purposes of the Code.
We considered the claims “youthful vitality”, “peak wellness”, and “transform your life today”, in ad (a) would be understood by consumers to mean that the advertised supplement provided overall good health. Ad (a) also included the hashtag “#VitaShroomMagic”, and ad (b) featured the claim that Lion’s Mane was a “superstar mushroom”. In the context of ads which included a range of claims about the health benefits of the supplements, we considered those claims also suggested that the supplement, or Lion’s Mane, provided overall good health. Those claims were also therefore general health claims for the purposes of the Code.Because we had not seen evidence that any of the specific health claims included in the ads were authorised on the GB Register in relation to the VitaShroom Gummies supplement or any of its ingredients, including Lion’s Mane mushroom, we concluded those claims breached the Code. Additionally, none of the general health claims were accompanied by a specific authorised health claim, and those claims therefore also breached the Code.On that point, ads (a) and (b) breached CAP Code (Edition 12) rules 15.1, 15.1.1, 15.2 (Food, food supplements and associated health or nutrition claims) and 15.7 (Food supplements and other vitamins and minerals).
3. Upheld
The ingredients list published online by Vitality Greens, and shown on the product packaging in ad (b), indicated that VitaShroom Gummies included Turkey Tail mushroom (Trametes versicolor). We understood that Trametes versicolor was likely to be considered by the Food Standards Agency (FSA) as an unauthorised novel food that did not have the relevant authorisation for marketing in the UK. Therefore it, and products containing it, should not be sold in the UK.
The ingredients list also indicated that the product contained Cordyceps mushroom, although it did not specify which species. While certain species of Cordyceps were not considered to be a novel food in food supplements, we understood that Cordyceps militaris was considered by the FSA to be likely to be an unauthorised novel food. We noted we had not received confirmation from Vitality Greens as to which species of Cordyceps was included in the product.Because the ads had the effect of marketing an unauthorised novel food when it was not legal to do so, we concluded they breached the Code.On that point, ads (a) and (b) breached CAP Code (Edition 12) rule 1.10 (Legality).
Action
The ads must not appear again in the form investigated. We told Person(s) unknown t/a Vitality Greens to ensure their ads did not make claims that a food or food supplement could prevent, treat or cure human disease, including implied claims to prevent treat or cure anxiety and its symptoms. We also told them to ensure any specific health claims were authorised on the GB Register, and that any general health claims were accompanied by a relevant authorised specific health claim. We told them not to market any products which contained unauthorised novel foods to UK consumers until such time as they were authorised. We referred the matter to CAP’s Compliance team.
BCAP Code
CAP Code (Edition 12)
15.6 15.6.2 15.1 15.1.1 15.2 1.10
