Background

Ad description

Seven magazine and national press ads, two paid-for tweets, a video on the advertiser’s Instagram page and the website for Rosemary Water:

a. A magazine and national press ad, seen in April and June 2017, featured the heading “A LADY IN ACCIAROLI HAS BEEN ON ‘THE ROSEMARY DIET’ FOR 100 YEARS. TELL HER IT’S A FAD”. Further text stated “The extract in No1 Rosemary Water is created by the UK’s best botanical scientists. A combination of extraction techniques results in all the correct amino acids and flavonoids being present. Evidence strongly suggests a daily intake of rosemary can help the body stay illness free and in turn contribute to a much longer life”.

b. A magazine ad, seen in June 2017, featured the heading “ACCIAROLI, ITALY, WHERE ROSEMARY GROWS WILD AND PEOPLE GROW OLD. VERY OLD”. The ad featured the same further text as in ad (a).

c. A national press ad, seen on 4 June 2017, featured the heading “IMAGINE IF YOU COULD BOTTLE WHAT THE HEALTHY CENTENARIANS OF ACCIAROLI HAVE GOT. WE DID”. Further text stated “No1 Rosemary Water is the first and only drink in the world to contain pure rosemary extract. It was inspired by the Italian town of Acciaroli, where people are living to over 100 years old in unusually large numbers. Almost 350 (more than 1 in 10) of them are now healthy centenarians with little or no Alzheimers[sic], Arthritis or Cataracts. Scientists believe their daily consumption of rosemary is responsible for their incredible good health and longevity”.

d. A national press ad, seen on 11 June 2017, featured the heading “ACCIAROLI, ITALY, WHERE ROSEMARY GROWS WILD AND PEOPLE GROW OLD. VERY OLD”. The ad featured the same further text as in ad (c).

e. A national press ad, seen in May 2017, featured the heading “MANY, MANY YEARS FROM NOW, YOU MIGHT REMEMBER SEEING THIS”. Further text stated “Dr Mark Moss of Northumbria University has been studying the benefits of rosemary on memory function for many years. He has now concluded in a new study, that rosemary can indeed assist memory. The UK’s best botanical scientists use a combination of techniques to obtain the extract in No1 Rosemary Water. This results in all the correct amino acids and flavonoids being present, to help you enjoy a healthy memory too”.

f. A national press ad, seen in September 2017, featured the heading “MANY, MANY YEARS FROM NOW, YOU MIGHT REMEMBER SEEING THIS”. Further text stated “No1 Rosemary Water is the world’s only drink containing pure rosemary extract. Proven to improve memory function and help keep the mind sharp and focussed”.

g. A national press ad, seen in September 2017, featured the heading “REFRESH YOUR MEMORY”. The ad featured the same further text as in ad (f).

h. A paid-for tweet, seen on 5 June 2017, stated “Anti-inflammatory, anti-oxidant, anti-carcinogenic and memory-boosting. It must be something in the water …”.

i. A paid-for tweet, seen on 18 June 2017, stated “Heard about the health benefits of rosemary? We’ve bottled them!”.

j. A video ad posted on Rosemary Water’s Instagram page, seen on 25 September and 20 October 2017, with the text “#superherb #no1rosemarywater #lightscameraction #daphneselfe #theydontmakethemlikethisanymore #lovesinatra #class #oldstyle #richtraditions #richflavours #acciaroli #recogniseheritage”. The video began with a photoshoot scenario in which the characters wore modern clothing. The subject of the photoshoot was a woman, shown from behind, with long silver hair. She picked up a glass of the product before turning around to face the camera, when it became apparent that she was in her eighties or nineties. She took a sip of the water and over the next 30 seconds her appearance gradually became younger, until she looked as if she were in her twenties. She took another sip of water and the camera panned out to show that she and other characters were wearing clothing from the 1950s. The woman walked away from the photographer, stroking the leaves of a rosemary plant as she walked past it. On-screen text then stated “A DRINK TO REMEMBER”. The visuals were accompanied by the song ‘It was a very good year’.

k. The website www.rosemarywater.com, seen in May and September 2017, featured a range of claims about the health benefits of the product and rosemary, and its effects on specific diseases and health conditions, including claims which appeared in the ads described above.

In addition:

A web page headed “Shop Online” included the claim “No1 Rosemary Water is imbued with the anti-bacterial … properties of its namesake ingredient - including naturally-forming, joint-reinforcing glucosamine”.

A web page headed “The Science Behind No1 Rosemary Water” included the claim “Several research scientists have found that rosmarinic acid - rosemary’s active ingredient - can offer a number of health benefits to regular consumers” and included brief summaries of a range of “Medical and Scientific Studies” about rosemary’s effects on a wide range of diseases and health conditions.

A web page headed “Is rosemary good for you”, in the “News & Press” section of the website, included the claim “Recent research on rosemary has suggested that it can: …Encourage hair growth”.

A web page headed “The top 5 health benefits of rosemary”, in the “News & Press” section of the website, included the claims “Rosemary … can help protect the immune system, improve blood circulation and promote eye health”.

Issue

The ASA received 19 complaints.

The complainants challenged:

1. the explicit and implied claims that the product could “help the body stay illness free” in ads (a) and (b), prevent Alzheimer’s, arthritis and cataracts in ads (c) and (d), and that the product had “anti-inflammatory”, “anti-carcinogenic” and “anti-bacterial” properties in ads (h) and (k), which were claims to prevent, treat or cure disease;

2. the explicit and implied claims in ads (e), (f), (g) and (h) that the product could improve memory function, that it was an “anti-oxidant” in ad (h) and “joint-reinforcing” in ad (k), and that it could “Encourage hair growth”, “help protect the immune system”, “improve blood circulation” and “promote eye health” in ad (k), which were specific health claims which must be authorised on the EU Register of nutrition and health claims made on foods (the Register);

3. the claim that the product would provide “good health and longevity” in ads (c) and (d), the claim “Heard about the health benefits of rosemary? We’ve bottled them!” in ad (i), and the implied claim that the product had a beneficial effect on ageing in ad (j), which were general health claims which must be accompanied by a specific authorised health claim; and

4. whether the inclusion of the references to “the UK’s best botanical scientists” and “Dr Mark Moss of Northumbria University in ads (a) and (e) breached the Code.

Response

1. Rosemary Water Ltd said they now understood that the claims: “a daily intake of rosemary can help the body stay illness free and in turn contribute to a much longer life” in ads (a) and (b); that the product was “anti-inflammatory” and “anti-carcinogenic” in ad (h); and that the product was “anti-bacterial” in ad (k) were prohibited because they were claims to prevent, treat or cure disease.

However, they believed that the claim in ads (c) and (d) that a high proportion of Acciaroli’s residents had “little or no Alzheimers[sic], Arthritis or Cataracts” did not imply that their product or any of its ingredients were responsible for those low rates of disease. They said the ads communicated facts about the very low rates of specific chronic and degenerative diseases in Acciaroli’s citizens, and indicated that their rosemary was sourced from near to the town. They said the ads did not make any link, either stated or implied, between disease prevention and the consumption of rosemary or No1 Rosemary Water. They said that in contrast the link made in the ad related to the provenance of the rosemary from which they derived their extract.

2. Rosemary Water agreed that the identified claims were health claims. They said that health claims for botanical substances had been placed “on hold” by the EU and that transitional measures under Article 28 of Regulation (EC) 1924/2006 on nutrition and health claims made on foods (“the Regulation”) continued to apply. They said the Department of Health had published a list of health claims it considered were acceptable in the UK under those transitional measures. Rosemary Water said that list included a claim relating to the antioxidant effects of rosemary. They added that a European Food Safety Authority (EFSA) Scientific Opinion published in 2008 relating to the use of rosemary extracts as a food additive accepted and adopted the antioxidant effect for rosemary; they highlighted specific statements in that report.

3. Rosemary Water said they agreed that the implied claim that the product had a beneficial effect on ageing in ad (j) was neither authorised on the EU Register nor an “on hold” claim for rosemary. However, they believed that the claim “Heard about the health benefits of rosemary? We’ve bottled them!” in ad (i) would be acceptable if, going forward, it was accompanied by the “antioxidant properties” “on hold” claim for rosemary. They felt it would be appropriate to use the term “antioxidant” as stated in that claim because they considered its meaning would be unambiguous to consumers. Alternatively they could use wording that was similar to that used in authorised health claims for vitamins: that rosemary contributed to the “protection of cells from oxidative stress”.

4. Rosemary Water noted that CAP Code rule 15.6.3 disallowed “the recommendation of an individual health professional”. They said there was a clear difference between mentioning the work of a researcher or scientist in relation to a product, as opposed to mentioning their recommendation. They therefore believed the challenged claims in their advertising were not in breach of the Code.

Assessment

1. Upheld

The ads were subject to CAP Code 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   which stated that claims that stated or implied a food prevents, treats or cures human disease were not acceptable in ads for foods or beverages.

The ASA considered that the claims in ads (h) and (k) that No1 Rosemary Water was “anti-inflammatory”, and “anti-bacterial” would be interpreted by consumers to mean that the product could prevent, treat or cure inflammation, and that it killed harmful bacteria and germs and therefore could prevent those who consumed it from contracting diseases caused by such bacteria, and treat or cure such diseases. We considered consumers would understand the claim “anti-carcinogenic” in ad (h) to mean that the product could prevent those who consumed it from developing cancer.

We also considered consumers would understand that the claim in ads (a) and (b) that “a daily intake of rosemary can help the body stay illness free and in turn contribute to a much longer life” would be understood by consumers to mean that No1 Rosemary Water could prevent the development of diseases and thus result in a longer life. While that claim did not specifically refer to No1 Rosemary Water providing those benefits, we considered that because the key feature differentiating the product from other bottled waters was that it contained rosemary extract, consumers would link the product’s rosemary content with the benefits attributed to rosemary in the ad and understand that consuming the advertised product would have the same effect.

We noted that both ads (c) and (d) stated that scientists believed that the low rates of Alzheimer’s, arthritis and cataracts experienced by the citizens of Acciaroli were due to their consumption of rosemary. As referenced above, because the key feature of No1 Rosemary Water was its rosemary content, we considered that consumers would link the product with the benefits attributed to rosemary in the ad and understand that consuming No1 Rosemary Water would prevent the development of Alzheimer’s, arthritis and cataracts.

The challenged claims constituted those that the product could prevent, treat or cure human disease. We therefore concluded the ads breached the Code.

On this point, ads (a), (b), (c), (d), (h) and (k) 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).

2. Upheld

According to 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 understood that specific health claims that were "on hold" for botanical ingredients could be used, provided such use had the same meaning as the proposed claim and they were used in compliance with applicable existing national provisions (in this case the CAP Code), which meant that the claims must be substantiated by evidence.

Rosemary Water had identified one claim relating to rosemary on the list of “on hold” botanical claims. We noted that claim related only to the “antioxidant properties” of rosemary and did not refer to improving memory function, reinforcing joints, encouraging hair growth, helping to protect the immune system, improving blood circulation, or promoting eye health, which were claims made either for rosemary or No1 Rosemary Water in ads (e), (f), (g), (h) and (k). We considered those claims would be understood by consumers to be specific health benefits of the product, or the rosemary in it. We noted there were no other “on hold” claims for rosemary on the list of botanical substances, nor were there any authorised claims for it on the EU Register. Because those claims in Rosemary Water’s advertising did not relate to any authorised or “on hold” claims for rosemary we concluded they were in breach of the Code.

We considered that the claim “… anti-oxidant … It must be something in the water …” in ad (h) would be understood by consumers to mean that No1 Rosemary Water had antioxidant properties which were beneficial to health. We noted the list of “on hold” claims for botanical substances included a claim relating to the “antioxidant properties” of “Rosemary / Rosemary officinalis”.

We understood the “on hold” claim had been submitted to EFSA with the proposed conditions of use that the health benefit stated in the claim was based on the consumption of 50 mg of dried rosemary leaf per day, rather than to the rosemary extract which was used in No1 Rosemary Water. Furthermore, we noted that the EFSA Scientific Opinion referred to by Rosemary Water assessed the safety of rosemary extract when used as an antioxidant food additive (E number E392). We noted that antioxidants as a food additive were described by the EU as substances which prolonged the shelf-life of foods by protecting them against oxidation (i.e. against fat rancidity and colour changes). We understood that the rosemary extract in No1 Rosemary Water was classed as a food additive rather than a botanical substance and therefore the “on hold” claims for the botanical substance Rosemary officinalis were not applicable. Because the claim “anti-oxidant” in ad (h) did not relate to any authorised or “on hold” claims for the product or any of its ingredients we concluded it was also in breach of the Code.

On this point, ads (e), (f), (g), (h) and (k) breached CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  (Misleading advertising),  3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.  (Substantiation),  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.  and  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).

3. Upheld

The Code required that references to general benefits of a nutrient or food for overall good health or health related well-being were acceptable only if they were accompanied by a specific authorised health claim. We considered such general health claims could alternatively be accompanied by an “on hold” health claim for a botanical substance if use of that claim for the product or ingredient had been substantiated.

We considered consumers would understand the claim “Heard about the health benefits of rosemary? We’ve bottled them!” in ad (i) and the claim “good health and longevity” in ads (c) and (d) to mean that, due to its rosemary content, No1 Rosemary Water would provide general benefits for overall good health and health related well-being. We considered that, while fantastical, the presentation of the older woman drinking No1 Rosemary Water and gradually becoming younger in appearance in ad (j), would be interpreted by consumers as implying that the product had a beneficial effect on ageing, and therefore that it had general benefits for overall good health and health related well-being.

We noted that none of the general health claims in the ads were accompanied by a specific health claim authorised on the EU Register or an “on hold” health claim for a botanical substance. We further noted that, as referenced at Point 2 above, there were no authorised health claims or “on hold” claims which related to the rosemary extract in No1 Rosemary Water or for the product itself. We concluded the general health claims in the ads therefore breached the Code.

On this point, ads (c), (d), (i) and (j) breached CAP Code (Edition 12) rule  15.2 15.2 References to general benefits of a nutrient or food for overall good health or health-related well-being are acceptable only if accompanied by a specific authorised health claim.  (Food, food supplements and associated health or nutrition claims).

4. Upheld

The CAP Code stated that health claims that referred to the recommendation of an individual health professional were not acceptable in ads for foods.

Ad (a) included a claim that would be understood by consumers to mean that the rosemary in the product, and therefore the product, could prevent the development of diseases and thus result in a longer life. That claim followed the reference to the rosemary extract in the product being created by the “UK’s best botanical scientists” and to it containing “all the correct” amino acids and flavonoids. We therefore considered the ad linked the “best” botanical scientists in the UK with the product featured in the ad, for which a claim to prevent disease was made. We considered the ad therefore implied that those scientists recommended the product.

While the ad referred to “botanical scientists” rather than “health professionals”, we considered that in the context of the claims about their involvement in the creation of the rosemary extract in the product, and to evidence relating to rosemary’s health benefits, consumers would understand those scientists to be health professionals with expertise in that field. Although we acknowledged that individuals were unlikely to seek personal health care from a scientist, we considered that a recommendation from scientists with an expertise in the relevant field was likely to influence consumers’ purchasing decisions. We further considered that while the ad did not refer to the recommendation of any one individual health professional, its reference to “the UK’s best botanical scientists” would have the same meaning and implications for consumers’ purchasing decisions.

Ad (e) referred specifically to Dr Mark Moss’ studies of the benefits of rosemary on memory function and to his conclusions that rosemary could assist memory. We considered consumers would understand the references to rosemary’s benefits for memory function, assisting memory and the presence of “all the correct” amino acids and flavonoids being present in the rosemary extract in the product helping to provide a “healthy memory” to be specific health benefits of the product, or the rosemary in it, for memory function. We considered the ad linked Dr Mark Moss with those health claims, and implied that he was making a recommendation for the product.

We considered it was not clear from the ad whether Dr Mark Moss was a scientist or a medical doctor, but in the context of an ad for a product which contained an extract of the substance he was studying in relation to its health effects, we considered consumers would in either case understand him to be a health professional with expertise in that field. As noted above, we considered that was likely to influence consumers’ purchasing decisions.

Ad (e) also included a reference to the “UK’s best botanical scientists”, which we considered would be understood similarly to the same reference in ad (a).

We concluded that ads (a) and (e) made health claims that referred to recommendation from an individual health professional and therefore breached the Code.

On this point, ads (a) and (e) breached CAP Code (Edition 12) rule  15.6.3 15.6.3 Health claims that refer to the recommendation of an individual health professional. Health claims that refer to the recommendation of an association are acceptable only if that association is a health-related charity or a national representative body of medicine, nutrition or dietetics  (Food, food supplements and associated health or nutrition claims).

Action

The ads must not appear again in the forms complained about. We told Rosemary Water Ltd not to make claims that No1 Rosemary Water could prevent, treat or cure disease. They should not make specific health claims for the product or its ingredients unless they were authorised on the EU Register, and should not make general health claims for the product unless they were accompanied by an authorised specific health claim. We also told them not to make health claims which referred to the recommendation from an individual health professional.

CAP Code (Edition 12)

15.1     15.1.1     15.2     15.6     15.6.2     15.6.3     3.1     3.7    

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