Ad description
A web page headed "WEIGHT LOSS" and “WEIGHT LOSS PRODUCTS”, seen on www.proteinworld.com in January 2018, featured a number of food supplement products.
Issue
The ASA challenged whether the product category headings "WEIGHT LOSS" and "WEIGHT LOSS PRODUCTS” were health claims that were authorised on the EU Register for each product listed in the category.
Response
Protein World acknowledged the complaint but did not respond on the substance of the ASA’s enquiries.
Assessment
The ASA was concerned by Protein World’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 respond to the substance of our enquiries and we told them to do so in future.
Upheld
The ASA sought the views of four industry bodies: the Council for Responsible Nutrition UK (CRN UK), the European Specialist Sports Nutrition Alliance (ESSNA), the Health Food Manufacturers’ Association (HFMA), and the Proprietary Association of Great Britain (PAGB).
CRN UK stated that category headings acted as a form of signposting, helping consumers find the particular product they were seeking. Such signposting could feature product sectors other than food supplements, such as other types of food products, medicinal products and/or medical devices. Removing these signposts could be misleading and confusing for consumers, as they would not know where to find what they were looking for. They said that, to some extent, a lack of signposting could potentially lead to consumer harm, if they inadvertently selected the wrong type of product for their requirements.
ESSNA stated that product categories were needed as an orientation tool for consumers, to enable them to explore individual items in more detail. They did not believe that statements about weight loss and slimming in a category heading made a claim about the function of products within the category. They said that appropriate and accurate information on the products within the different categories was available on individual product pages.
The HFMA stated that category headings acted as signposts for consumers, and did not promote the supply of identifiable goods. They believed that categories referring to slimming and weight loss were necessary in order to provide consumers with a breadth of relevant choices of competing and complementary products. Accurate information, in the case of food supplements, was available at individual product level through mandatory and regulated food information.
The PAGB stated that while there were circumstances where a category heading could be interpreted as a claim, often it functioned as a straightforward navigational tool, and that would be dependent on context. They noted that the heading “WEIGHT LOSS” could cover products including books, sporting wear and other wellbeing products intended to support weight loss, and in that context the heading could be considered a simple sign post.
The ASA considered that a statement about weight loss, presented in a category heading, would be understood as a claim about the function of the products contained within that category, which was likely to influence a consumer’s decision to purchase those products. We considered that consumers would understand foods and food supplements placed in the "WEIGHT LOSS" category to have the inherent function of helping them to lose weight, as opposed to products that would enable the user to undertake other activities that would help them maintain or lose weight (for example, fitness clothing and equipment). Medical devices and medicines included in such a category would need to be assessed under the relevant rules for each product type.
According to Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), only health claims listed as authorised on the EU Register were permitted in marketing communications for foods, including food supplements. Health claims were defined as those which stated, suggested or implied a relationship between a food, or ingredient, and health. We considered that “WEIGHT LOSS” was a health claim.
In January 2018, 44 product listings relating to food supplements, foods, and bundles of foods and supplements were included in the "WEIGHT LOSS" category on Protein World’s website. We selected three products from that list – The Slender Tea, Carb Blocker and CLA Capsules – and asked Protein World to provide evidence that the products included substances for which there were health claims relating to weight loss authorised on the EU Register, and that the products contained those substances in sufficient quantities to meet the conditions of use for the relevant authorised claims. Protein World, however, did not provide any evidence to that effect.
In the absence of any evidence to demonstrate that the food products and supplements included in the “WEIGHT LOSS” category contained substances, in sufficient quantities, for which there was an authorised health claim relating to weight loss, we concluded that the use of the “WEIGHT LOSS” category heading was in breach of the Code.
The ad 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.
and
15.7
15.7
Nutrition and health claims for food supplements must be permitted or authorised as provided for at rule
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.
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, food supplements and associated health or nutrition claims).
Action
The ad must not appear again in its current form. We told Protein World Ltd to ensure that they did not place food supplements or food products in the “WEIGHT LOSS” category unless they held evidence that those products were capable of carrying an equivalent health claim that was authorised on the EU Register. We referred the matter to CAP's Compliance team.
