Background
Ads (a), (b), (e) and (f) appeared between July and December 2020, and we therefore assessed them under the Code rules that applied at that time.
Ads (c), (d) and (g) appeared between January and April 2021, and we therefore assessed them under the Code rules interpreted in the light of changes in the background law resulting from the UK’s exit from the EU, as per CAP/BCAP’s statement on EU exit dated 22 December 2020.
Ad description
A website, five Instagram posts and an Instagram Highlights reel for Pruvit UK:
a. The website www.ketonesupplement.co.uk, seen on 28 October 2020, featured an image of the product range at the top with the headline “Pruvit UK shipping KETO OS NAT!”. Text further down the page stated “About Keto OS NAT … There are many benefits of ketosis and KETO OS NAT. Here are a few of the top benefits: Fat-Loss: KETO//OS targets and burns body fat with every serving … Appetite Suppression: Ketones naturally suppress your appetite … Protect and preserve muscle: Ketones … will preserve and protect your lean tissue … Fast & Sustained Energy: Ketone … maximizes your mindset [sic] and mental focus … Improved Clarity & Focus … Joint Mobility: Ketones, specifically beta hydroxybutyrate … help maintain healthy joint mobility”. Beneath that was text that stated “KETO OS NAT supports healthy cell function, rapidly repairs DNA, helps support, [sic] a healthy immune system, and elevates essential amino acids necessary for optimizing body composition”. Several buttons throughout the page labelled “BUY KETONES” and “SHOP KETONES” contained hyperlinks to an affiliate shop, myketocoach.shopketo.com/gb.
b. The first Instagram post, seen on @miss.ketones Instagram page on 29 December 2020, included an image with the text “New Year New Me! The 10 Day Drink Ketones Challenge FIRST OF THE YEAR 2021 Next CHALLENGE START DATE: 4TH - 13TH January”. The caption stated “Who’s joining me? Want to burn fat, have more energy, better focus and better sleep? Let’s get fit and get rid of the lockdown fat DM for Discount code x”. @miss.ketones’ Instagram bio section contained a hyperlink to an affiliate shop, daniellelloyd.shopketo.com/gb.
c. The second Instagram post, seen on @miss.ketones Instagram page on 16 January 2021, included two side-by-side images of celebrity Danielle Lloyd wearing a white crop top and black leggings. One image was dated 4 January and the other was dated 14 January. The caption stated “Join my drink Ketones 10 day challenge #energy #exogenousketones #bettermood #morefocus #multipatented #approved”.
d. The third Instagram post, seen on Danielle Lloyd’s Instagram account on 15 January 2021, included two side-by-side images of Danielle Lloyd’s back. One image was dated 4 January and the other was dated 14 January. The caption stated “Actually feel embarrassed posting these before pictures I really did let myself go in December. I joined @miss.ketones 10 day challenge and these are my results!! Am so pleased although I’ve only lost 5lb on the scales, you can see from my pictures my shape has changed dramatically. It was so easy 2 keto drinks a day and eat as normal. I lowered my carb intake to get the best results possible but I did little to no exercise”.
e. The fourth Instagram post, posted on Hey Keyto Mama's account on 5 July 2020, featured an image of a tick list that stated “FAT LOSS … MUSCLE PRESERVATION … FAST & SUSTAINED ENERGY … REDUCES BRAIN FOG … INCREASES FOCUS … APPETITE SUPPRESSION … STRENGTH GAIN … BETTER MOOD … BETTER SLEEP … BETTER DIGESTION”. A caption underneath that image stated “The key beenefits [sic] of exogenous ketones”. Hey Keyto Mama’s Instagram bio section contained a hyperlink to an affiliate shop, heyketomama.shopketo.com/gb.
f. The fifth Instagram post, posted on Hey Keyto Mama's account on 5 July 2020, featured an image that displayed the Pruvit logo with text underneath that stated “Pure Therapeutic Exogenous Ketones … FOCUS Reduces brain fog and increases awareness … SLEEP Wake up feeling recharged and refreshed … ENERGY Fast and sustainable energy from within … STRENGTH Increases strength & decreases inflammation … FAT LOSS Targets & burns bodyfat [sic] with every serving … MOOD Help regulate your ups and downs”.
g. The Instagram Highlights reel, seen on Cheryl Johnston’s account on 8 April 2021, featured a number of posts about Pruvit’s products, including one that featured the same image and text as ad (b); and a second with text that stated “I’ve heard this can help auto immune diseases? IT CAN INDEED … BEING IN KETOSIS CAN HELP WITH INFLAMMATION. WE’VE SEEN PEOPLE WITH SKIN CONDITIONS SEE IMPROVEMENT. AS WELL AS OTHER AUTO IMMUNE CONDITIONS”. Ms Johnston’s Instagram bio section contained a hyperlink to an affiliate shop, heyketomama.shopketo.com/gb.
Issue
The ASA received four complaints, including one from Vale of Glamorgan Council Trading Standards:
1. Four complainants challenged whether the health claims in ads (a), (b), (c), (d), (e), and (f) complied with the Code.
2. One complainant challenged whether ad (d) referred to a rate or amount of weight loss, which was prohibited by the Code.
3. One complainant challenged whether the claims “decreases inflammation” in ad (f), and “CAN HELP WITH INFLAMMATION”, “WE’VE SEEN PEOPLE WITH SKIN CONDITIONS SEE IMPROVEMENT”, and “AS WELL AS OTHER AUTO IMMUNE CONDITIONS” in ad (g) breached the Code.
4. Vale of Glamorgan Council Trading Standards challenged whether R-Beta-hydroxybutyrate, which they understood was one of the ingredients of "KETO OS NAT", had the relevant authorisation for marketing, because they believed it was a 'novel food'.
Response
1., 2., 3., & 4.Pruvit Ventures Inc. t/a Pruvit said that they were a USA-based company and did not operate as a UK entity. They said that the ads under investigation had been prepared by independent third-party resellers. Ad (a) had been published by a reseller based in the USA, whereas ads (b)-(g) had been published by resellers based in the UK.
Pruvit said that in relation to ad (a) they had contacted the reseller and advised them to stop making the claims in the ad. The reseller had then complied with the request and also removed the domain name from future advertising. Where ads (b)-(g) were concerned, Pruvit said they had contacted Miss Ketones and Cheryl Johnston asking them to stop making the claims under investigation. They had then received confirmation from those resellers that they had complied with the request and would remove their Instagram accounts from further advertising of Pruvit’s products.
Miss Ketones Ltd (Danielle Lloyd) said that she was a team member for Pruvit and worked as a promoter for the brand. Ms Lloyd said that the claim in ad (d) that she had lost five pounds over the space of 10 days was a statement of fact and that she had not been aware that such claims were prohibited by the Code. She said that she had also been unaware that Pruvit’s products contained the novel food R-Beta-Hydroxybutyrate. Ms Lloyd said that she had now removed all posts related to the claims under investigation and referring to Pruvit’s products generally from the Miss Ketones’ account and her personal Instagram account.
Cheryl Johnston said that she had removed the relevant posts from both her personal account and her @heykeytomama account and would not be posting any similar claims again.
Assessment
The ASA acknowledged Pruvit’s comments that ketonesupplement.co.uk, Ms Lloyd and Ms Johnston were independent, third-party resellers of their products. We noted that ketonesupplement.co.uk’s website contained a number of buttons labelled “BUY KETONES” and “SHOP NOW”, which led to a Pruvit affiliate shop. The links in Ms Lloyd and Ms Johnston’s Instagram page bios also led to Pruvit affiliate shops. We understood that Pruvit directly paid its promoters for sales made through their affiliate shops, and that they received a commission for any sales generated by Pruvit from purchases made through their shops.The website, Instagram posts and Instagram Highlights reel promoting Pruvit’s products were therefore directly connected with the supply of goods provided by Pruvit, and were ads for the purposes of the Code. Pruvit had stated they had no direct input into or control over the ads, but we nonetheless considered that, as the direct beneficiaries of the marketing material through their affiliate programme, they were jointly responsible for the ads and their compliance with the CAP Code.
1. Upheld
According to EC Regulation 1924/2006 on nutrition and health claims made on foods (the Regulation), which was reflected in the CAP Code, only health claims listed as authorised on the EU Register of nutrition and health claims made on foods (the EU Register) were permitted in marketing communications published on or before 31 December 2020. From 1 January 2021, only health claims authorised on the Great Britain nutrition and health claims (NHC) register (the GB Register) were permitted in marketing communications.
Any health claims made in ads (a), (b), (e) and (f) must therefore be listed as authorised on the EU Register, whereas any health claims in ad (c) and (d) must be listed as authorised on the GB Register. The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food, drink or ingredient and health.
The ASA considered the claims “targets and burns body fat with every serving”, “Ketones naturally suppress your appetite”, “Protect and preserve muscle: Ketones … will preserve and protect your lean tissue”, “Ketone … maximizes your [mind set] and mental focus”, “Improved Clarity & Focus”, “Joint Mobility: Ketones, specifically beta hydroxybutyrate … help maintain healthy joint mobility” and “KETO OS NAT supports healthy cell function, rapidly repairs DNA, helps support, a healthy immune system, [sic] and elevates essential amino acids necessary for optimizing body composition” in ad (a), and the similar claims in ads (b), (c), (e) and (f) to be specific health claims for the purposes of the Code. We also considered the claim “I joined @miss.ketones 10 day challenge and these are my results!! Am so pleased although I’ve only lost 5lb on the scales, you can see from my pictures my shape has changed dramatically” in ad (d) to be a specific health claim for the purposes of the Code. However, we had not seen any evidence which demonstrated that those claims were authorised on either the EU Register or the GB Register, or that Pruvit’s products met the conditions of use associated with any authorised specific health claims. Because the ads made specific health claims that were not authorised on the EU Register or the GB Register, we concluded they breached the Code.On that point, ads (a), (b), (c), (d), (e) and (f) 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).
2. Upheld
The CAP Code stated that health claims that referred to a rate or amount of weight loss were not acceptable when made in relation to a food. We considered that consumers would understand from the claim “I joined @miss.ketones 10 day challenge and these are my results!! Am so pleased although I’ve only lost 5lb on the scales, you can see from my pictures my shape has changed dramatically” in ad (d), as well as the image in that ad, to mean that by using the Pruvit products promoted on Miss Ketones’ page, consumers could lose five pounds in 10 days.
We considered that the image and claim in ad (d) referred to a rate and amount of weight loss in relation to a food and that the claim therefore breached the Code.
On that point, ad (d) breached CAP Code (Edition 12) rules 15.6 15.6 These are not acceptable in marketing communications for products within the remit of this section: and 15.6.6 15.6.6 Health claims that refer to a rate or amount of weight loss. (Food, food supplements and associated health or nutrition claims).
3. Upheld
The CAP Code prohibited claims that stated or implied that a food could prevent, treat or cure human disease. We considered that consumers would understand from ads (f) and (g), and in particular the claim “decreases inflammation” in ad (f), and the claims “CAN HELP WITH INFLAMMATION”, “WE’VE SEEN PEOPLE WITH SKIN CONDITIONS SEE IMPROVEMENT” and “AS WELL AS OTHER AUTO IMMUNE CONDITIONS” in ad (g) that taking the product could help treat inflammation, skin conditions and auto-immune conditions.
We therefore considered ads (f) and (g) made disease treatment claims for a food supplement and concluded that they breached the Code.On that point, ads (f) and (g) 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).
4. Upheld
We noted the ingredients of Pruvit’s products, and evidence provided by Vale of Glamorgan Trading Standards, that showed the presence of R-Beta-Hydroxybutyrate. We understood from the latter evidence that R-Beta-Hydroxybutyrate was an unauthorised novel food that did not have the relevant authorisation for marketing in the UK, and therefore that it, and products containing it, should not be sold in the UK.
Because the ads had the effect of marketing an unauthorised novel food when it was not legal to do so, we concluded that ads (a)-(g) breached the Code.On that point, the ads (a)?(g) breached CAP Code (Edition 12) rule 1.10 1.10 Marketers have primary responsibility for ensuring that their marketing communications are legal. Marketing communications should comply with the law and should not incite anyone to break it. (Legality).
Action
The ads must not appear again in the form complained about. We told Pruvit Ventures Inc., ketonesupplement.co.uk, Danielle Lloyd and Cheryl Johnston not to market any Pruvit products which contained R-Beta-Hydroxybutyrate to UK consumers until such time as it was authorised as a novel food. We also told them to ensure that any specific health claims made in their future advertising were authorised on the GB Register and met the associated conditions of use; that their advertising did not refer to a rate or amount of weight loss; and that their future ads did not state or imply that their food supplements could prevent, treat or cure human disease.
CAP Code (Edition 12)
1.10 15.7 15.1 15.6 15.1.1 15.6.2 15.6.6
