Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld
Ad description
A paid-for Facebook ad for Drop Supplements, a food supplement supplier, seen in January 2024 stated, “Get ready to experience a truly unique elixir that will take your mental performance to the next level…”. Beneath that an image of a bottle next to a mushroom was shown. The bottle had the text, “Happy Mind” on the label. Text to the top right of the bottle stated, “Designed to make you feel better”. Text beneath the bottle said, “FOR PEOPLE WITH STRESS ANXIETY BRAIN FOG ADHD…. Happy Mind Drops - your new secret adaptogen against stress! Prepare yourself to unleash your true potential and banish your mental barriers.”
Issue
The ASA challenged whether:
- the claim that the supplement, or substances in it, could help to prevent, treat or cure, anxiety, stress and ADHD were in breach of the Code;
- the specific health claims relating to alleviating brain fog, improving mental performance and ending mental barriers complied with the Code;
- the product name “Happy Mind” complied with the Code.
Response
1. The Drop Supplements Ltd t/a Drop Supplements said that their ads featuring “Happy Mind” made no direct or implied statements about curing, treating or preventing ailments or diseases.
2. They stated that the claims, “take your mental performance to the next level”, “FOR PEOPLE WITH […] BRAIN FOG” and “banish your mental barriers” were part of a broader lifestyle message that promoted positive thinking and mental resilience. Therefore, they believed no direct or implied health claims had been made. In addition they explained that the “Terms of Service” on their website had a section called, “Supplement Disclaimer and Advertising Clarification” which listed the full terms and conditions. One of the conditions stated their supplements were, “not intended to cure or prevent any diseases.”
3. They said that the product “Happy Mind” would be interpreted in all advertising as a supplement and not a specific health claim that inferred a preventative treatment for any medical condition. They explained that “Happy Mind Drops” was a trademarked term. The phrase was created to combine the product name, “Happy Mind” with the brand oral pipette administration, “The Drop”. They said, further, that the product used essential vitamins and minerals, such as B5 and zinc, which were known to stimulate mental performance and cognitive function and they had sought experienced food labelling advice regarding that.
They provided a copy of an email from a food labelling advisory firm which stated that if a small amount of vitamin B5 and zinc was added to the product, it was permissible to use “COGNITIVE FUNCTION” and “MENTAL PERFORMANCE on the front”. The email further stated if they had zinc, then “For Wellbeing” and “For Cognitive Function” would be acceptable as long as the full claim appeared on the product label.
Assessment
1. & 3. Upheld
The CAP Code stated that claims which stated or implied a food prevented, treated or cured human disease were not acceptable in marketing communications for foods or food supplement products.The ad stated, “FOR PEOPLE WITH STRESS ANXIETY […] ADHD” and “your new secret adaptogen against stress!” The ASA considered that those claims would be interpreted as explicit references that the product could help with those conditions, and therefore were claims that it could prevent, treat or cure human disease.
Further to that the ad stated, “take your mental performance to the next level…”, “banish your mental barriers” and “FOR PEOPLE WITH […] BRAIN FOG”. We considered that they could be interpreted by some consumers as health claims to help people feel better and assist with mental performance. However, in the wider context of the ad, and the separate explicit references to stress, anxiety and ADHD, we considered the claims would be understood by most consumers as references to helping with symptoms of those conditions, and therefore they were also implied claims that the product could prevent, treat or cure human disease.
The ad further displayed the product name, “Happy Mind” and used the term “Happy Mind Drops”, both of which indicated the cessation of a negative mental state. We considered that in isolation those claims could be understood by consumers as a health claim relating to mood, and therefore would have needed to be accompanied by a related authorised specific health claim. However, in the context of the wider ad and the explicit and inferred claims to assist with stress, anxiety and ADHD the terms “Happy Mind” and “Happy Mind Drops” would be interpreted as references that the product could help with those conditions, and therefore they were claims to prevent, treat or cure human disease. We recognised that “Happy Mind” was the product name and “Happy Mind Drops” was a trademarked term. However, the requirement that advertising claims made for foods and food supplements must not state or imply a food prevented, treated or cured human disease also applied to product names, including trademarks.
On those points, the ad 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 defined health claims as those that stated, suggested or implied a relationship between a food or ingredient, and health, and 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. Some flexibility could be exercised in rewording authorised claims, provided that the reworded claim was likely to have the same meaning for consumers as the authorised claim. Marketers must also ensure that they met the conditions of use associated with the claims in question.
As referenced above, we considered that in the context of the ad’s references to stress, anxiety and ADHD, the claims “take your mental performance to the next level”, “FOR PEOPLE WITH […] BRAIN FOG” and “banish your mental barriers” would be understood by most consumers as claims that the product could prevent, treat or cure human disease. However, some consumers might understand those claims as specific health claims that Happy Mind could boost mental performance and help with focus and concentration. We considered the claims would likely also be understood in that way if they had been presented in isolation and absent of the wider context in the ad under investigation.
Drop Supplements said the Happy Mind product contained zinc and vitamin B5 in sufficient quantities that their advertising could include authorised health claims about those nutrients. There was an authorised health claim for zinc that, “zinc contributes to normal cognitive function” and for vitamin B5 (pantothenic acid) that, “Pantothenic acid contributes to normal mental performance”.
We noted however that the ad did not include those claims. We further did not consider that the claims “take your mental performance to the next level”, “FOR PEOPLE WITH […] BRAIN FOG” and “banish your mental barriers” would be interpreted in the same way by consumers but rather would be seen as going beyond the meaning of the authorised claims. Additionally, the claims in the ad were attributed to the product overall rather than to the specific nutrients named in the authorised claims. We also had not been provided with evidence that the product contained sufficient quantities of zinc and pantothenic acid to meet the conditions of use for the authorised claims. Therefore, we concluded that those claims breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 15.1, 15.1.1 (Food, food supplements and associated health or nutrition claims) and 15.7 (Food supplements and other vitamins and minerals).
Action
The claims must not appear again in their current form. We told The Drop Supplements Ltd t/a Drop Supplements to ensure their future advertising did not make claims that food, including food supplements, could prevent, treat or cure human conditions that, for the purposes of the Code fall within the definition of human disease, and not to make health claims for foods if they were not listed as authorised in the GB (NHC) Register.
