Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A website and an Instagram reel for Tonic Health, an online retailer of vitamin supplements:
a. The website www.tonichealth.co, seen on 30 November 2023, featured a product listing for the “Daily Immunity” supplement. The listing stated “No Added Sugar, No Junk, Vegan”. A table comparing the Daily Immunity product with various competitor products including Berocca, titled “Vitamins (grams per daily serving)”, showed that the Daily Immunity product contained 3433 mg of vitamins, which was significantly higher than the other products listed in the table. Text next to the table stated “Optimal nutrition. Naturally. We out-vitamin the competition so you can upgrade your health game”. The same table was featured again further down the web page, with text next to it stating “Dump the Junk. Dump the sugars, chemicals and fillers. It’s a simple solution to make you feel you”.
b. The Instagram reel posted on Tonic Health’s Instagram page, seen on 15 March 2024, featured a video of a man standing next to Berocca products on a shelf in a supermarket. He said, “Big pharma are coming for us, check this out, the bad boys Berocca sent an official complaint to the ASA because they don’t like the fact that we’re telling you what’s in their product and what the facts are for what’s healthy. Berocca Immuno here is £8 for a tube at 53p per for tablet but Tonic’s only 45p per tablet, you get more vitamins and no artificial sweeteners so a much better way to go for your health than Berocca. And they don’t like it. They don’t want to look after your health like we do, so go get your Tonic and look after your health.”
Issue
Bayer plc, who manufactured the product Berocca, challenged whether:
1. the implied nutrition and comparative nutrition claims in ad (a) in relation to the vitamins contained in the Daily Immunity product and Berocca, breached the Code;
2. the phrase “dump the sugars” in ad (a) was a comparative nutrition claim that breached the Code; and
3. ads (a) and (b) discredited or denigrated another product.
Response
1. Tonic Nutrition t/a Tonic Health did not believe that the table in ad (a), which claimed that the total amount of vitamins in the Daily Immunity product was 3433 mg, was a nutrition claim. They also believed that comparing the total amount of vitamins in their product against competitor products, including Berocca, was not a comparative nutrition claim. They said that by simply adding up the amount of active ingredients in each of the named products, they provided consumers with a clear and easy way to understand what they were buying. They acknowledged that they should not have included certain ingredients, such as reishi mushrooms, which they acknowledged were not vitamins, in the Daily Immunity’s stated total amount of vitamins. Although that meant the figure of 3433 mg was incorrect, they said the purpose of the ad was to present factual evidence so that consumers knew what was in their product.
2. Tonic Health acknowledged that although Berocca contained sweeteners, it did not include sugars, and said they would remove the phrase “dump the sugars” from ad (a). They said they would also remove references to “sugars” from the table in ad (a) to ensure there was no confusion between sugars and sweeteners.
3. Tonic Health said that the phrase “dump the junk” in ad (a) was included to highlight sugar and artificial ingredients as ‘junk food’, which they believed was a generic term accepted by consumers and the industry to mean food that had low nutritional value, typically produced in the form of packaged snacks which required little or no preparation. They said they would remove ads (a) and (b) and intended to make wider changes across their advertising.
Assessment
1. Upheld
Only nutrition claims authorised on the Great Britain Nutrition and Health Claims Register (the GB Register) could be made in ads promoting food or drink products. The Code defined a nutrition claim as any claim which stated, suggested or implied that a food (or drink) had particular beneficial nutritional properties due to the amount of calories, nutrients or other substances it contained, did not contain, or contained in reduced or increased proportions. In addition, the advertiser must ensure that the product met the conditions of use associated with the authorised claim.
Ad (a) featured a table titled “Vitamins (grams per daily serving)”, which compared the claimed total amount of vitamins in the Daily Immunity product against the total amount of vitamins in various competitor products, including Bayer plc’s product, Berocca. The table stated the Daily Immunity product contained 3,433 mg of vitamins, which the ASA considered consumers would understand as meaning that the Daily Immunity product was high in a range of vitamins. Notwithstanding that the claim was misleading because the stated amount included substances that were not vitamins, for example, reishi mushrooms, we noted there was no authorised generalised ‘high in vitamins’ nutrition claim on the GB Register.
We also considered consumers were likely to understand from the table that the Daily Immunity product contained more vitamins overall than the competitor products. We considered that claim had the same meaning as the authorised comparative nutrition claim “increased [name of nutrient]”. However, that claim could only be used in relation to a specific named nutrient (rather than ‘vitamins’ generally), and the conditions of use stated in the GB Register required that the claim could only be used where the nutrients compared were not vitamins or minerals.
We therefore considered ad (a) made both a nutrition claim and a comparative nutrition claim for the purposes of the Code. However, neither claim was authorised on the GB Register. We concluded the ad breached the Code on that basis.
On that point, ad (a) breached CAP Code (Edition 12) rules 15.1 and 15.1.1 (Food, food supplements and associated health or nutrition claims).
2. Upheld
The GB Register stated that a claim stating that the content of one or more nutrients had been reduced, and any claim likely to have the same meaning for the consumer, may only be made where the reduction in content was at least 30% compared to a similar product. The claim “reduced sugars", and any claim likely to have the same meaning for the consumer, may only be made if the amount of energy of the product bearing the claim was equal to or less than the amount of energy in a similar product.
Ad (a) featured text which stated “dump the sugars” next to a table comparing the Daily Immunity product to Berocca, as well as several other products. We considered consumers would understand the ad to be a favourable comparison between the Daily Immunity product, which was sugar free, and the claimed sugar content of the products listed in the table. We therefore considered the ad made a “reduced sugars” comparative nutrition claim. However, we understood that although Berocca contained artificial sweeteners, the ad misrepresented its sugar content; it did not contain sugars. Because the Daily Immunity product did not contain less sugar than Berocca, the ad included a comparative nutrition claim that did not meet the conditions of use associated with the permitted claim, and we therefore concluded that it breached the Code.
On that point, ad (a) breached CAP Code (Edition 12) rules 15.1 and 15.1.1 (Food, food supplements and associated health or nutrition claims).
3. Upheld
The CAP Code stated that marketing communications must not discredit or denigrate another product or marketer. The rule applied irrespective of whether or not a claim was true, if it appeared in a comparative advertisement and was expressed in terms which were insulting, derogatory or demeaning. Ads which included comparisons with competitors which went beyond a robust and objective comparison of their products or services risked breaching that rule.
Ad (a) featured a table that claimed to show the total amount of vitamins (in grams per daily serving) in various nutritional supplements, including Tonic Health’s Daily Immunity product and Bayer plc’s Berocca product. The table was accompanied by a heading which stated “Dump the Junk” and text which stated “Dump the sugars, chemicals and fillers. It’s a simple solution to make you feel you”. Ad (b) featured a video in which a man held and talked about the Berocca Immuno product. During the video, he referred to Berocca as “bad boys”. He also said “… they don’t like the fact that we’re telling you what’s in their product and what the facts are for what’s healthy” and “They don’t want to look after your health like we do”.
We considered the phrase “dump the junk” in ad (a) and accompanying references to “sugars, chemicals and fillers”, next to the comparison table, implied the Daily Immunity product was of a higher quality due to it having a higher vitamin content and being without the “sugars, chemicals and fillers” of the competitor products, and that accordingly consumers should avoid those competitor products. We considered the term “junk” in that context to be a pejorative comment which suggested consumers should avoid purchasing Berocca or the other competitor products as they were of little to no value as supplements. We considered that those comments went beyond a factual and informative comparison about the relative nutritional value of the products. For those reasons, we considered ad (a) denigrated or discredited another product.
We considered the claims in ad (b) “… the bad boys Berocca sent an official complaint to the ASA because they don’t like the fact that we’re telling you what’s in their product and what the facts are for what’s healthy” and “They don’t want to look after your health like we do” implied that Berocca’s producers, Bayer plc, were not motivated by a desire to improve the health of its consumers and that they had launched an ASA complaint against Tonic Health in an attempt to restrain Tonic Health from informing consumers about the products’ relative nutritional/health value. We considered those comments, which were unverified and implied negative motivations by Bayer plc, also went beyond a factual and informative comparison about the relative nutritional value of the products and were denigratory about Berocca.
We therefore concluded that the ads discredited and denigrated Berocca and breached the Code.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rule 3.42 (Imitation and Denigration).
Action
The ads must not appear again in the form complained of. We told Tonic Nutrition t/a Tonic Health to ensure that they did not make nutrition or comparative nutrition claims unless they were authorised on the GB Register. We also told them to ensure they did not discredit or denigrate Bayer plc’s or their other competitors’ products.
