Background
Summary of Council decision:
Two issues were investigated, of which one was Not upheld and one was Upheld.
Ad description
A TV ad for Vitabiotics vitamin supplements showed Mark Foster on screen and text stated "Mark Foster 6X World Champion Swimmer". He said, "I've used Wellman for over ten years and I believe it's helped keep me on top form. But because men and women are different, they have different vitamin needs. So there's Wellman for him and Wellwoman for her. They're the UK's favourite tailored vitamins for men and women." Pack shots of both products were shown. On-screen text at the bottom of the ad included "Prof. Beckett is cited as a product inventor and former Vitabiotics chairman, not as a health professional". A voice-over then stated, "Each provides over twenty micro-nutrients and vitamins, including iron which helps reduce tiredness and fatigue. They were developed with pioneering British scientist Professor Arnold Beckett." A picture of the back of a pack was shown on which text stated "Originally developed with Prof. A. H. Beckett OBE, PhD, DSc (1920-2010) Professor Emeritus, University of London" alongside a small photo of Professor Beckett and a picture of his signature and a graphic of a flame. Mark Foster then said, "From the award winning Vitabiotics range. The science of healthy living."
Issue
The complainant challenged whether:
1. the ad complied with the Code, because they believed it implied that there were proven benefits to vitamin supplements structured specifically for men and for women; and
2. the reference to Professor Arnold Beckett complied with the Code, because they believed it emphasised the health claims in the ad.
Response
1. Vitabiotics Ltd said that the concept of targeting tailored supplements (for example, by providing different iron levels for men and women based on different nutritional requirements) did not imply a health claim, and that it was a common approach to use. They said the ad did not state or imply any gender specific health claims or that there were proven benefits to taking vitamins tailored for men and for women. They said that the authorised health claim relating to iron that did feature in the ad was made in relation to both products. They said the claim "... because men and women are different, they have different vitamin needs" was a factual statement only, and was not a health claim, and therefore did not require authorisation. They said the fact that men and women had different vitamin needs was demonstrated by the official UK dietary reference values, which they provided. They said that the claim "... because men and women are different, they have different vitamin needs" and therefore did not imply any nutritional or physiological benefit.
Clearcast said that before approving the ad they asked their consultant to comment on the script and they commented that advertisers were free to state that requirements for vitamins and other foods differed between the sexes, but could not use this as the basis for a health claim. They said they had accepted the claim "But because men and women are different, they have different vitamin needs" for use in the ad for two reasons. Firstly, because it was factually accurate to state that the products did contain different levels of vitamins and minerals tailored to the recommended daily allowances for men and women. Secondly, they did not consider it to be a health claim because it did not refer to any specific health benefits.
2. Vitabiotics did not believe the reference to Professor Arnold Becket was a health claim, and said he was clearly cited as a product inventor and former Vitabiotics chairman, not as a health professional. They said he was an eminent academic scientist and the reference to him was intended to communicate that the company had a credible scientific pedigree that some of their competitors lacked, and to act as a quality mark for their products. They said they had understood from previous informal contact with the ASA that the wording "Prof. Beckett is cited as a product inventor and former Vitabiotics chairman, not as a health professional" was likely to be acceptable in non-broadcast ads. They said the reference to "pioneering British scientist" in the ad further emphasised that he was a product inventor, not a health professional such as a medical doctor or pharmacist. They said they had taken care to ensure that references to him complied with the Code, for example by using an academic title to refer to him. They said that in addition the references to Professor Beckett formed an essential part of their company's brand and intellectual property, and that the use of his name and image by them was therefore exempt from the Regulation EC No 1924/2006 on nutrition and health claims made on foods (the Regulation ) under Article 28(2) and protected by their fundamental rights under the EU Charter of Fundamental Rights, including freedom of speech and protection of property.
Vitabiotics said that to breach BCAP rule 13.6 they would have to satisfy the following: there must be a health claim; the health claim must make reference to recommendations; and those recommendations must be of individual doctors or health professionals. In relation to the health claim requirement they said that the reference to Professor Beckett ("They were developed with pioneering British scientist Professor Arnold Beckett") did not include an implied or direct health claim and so this requirement was not met. They said that the only specific health claim in the ad was in relation to iron, and that did not make any reference to any recommendation, therefore this further requirement was not met. Furthermore they did not believe that Professor Beckett, who was deceased, could be considered an individual doctor or health professional. They said there were two notable definitions of "health professional" in UK law, including in the Human Medicines Regulation 2012 and Data Protection Act 1998. They said the definitions were broadly the same and were recently approved under the Health and Social Care Act 2012 as being definitions that could be used more generally under UK law. They said those definitions made clear that a health professional was a registered doctor, pharmacist or pharmacy technician or any other person governed by a statutory regulatory body such as the General Medical Council. They said Professor Beckett was not, and had never been, a registered doctor or practising registered pharmacist. They said he was a pharmacologist, scientist and product inventor who was the Chairman of Vitabiotics for 18 years until he passed away in 2010. They said the ad made no reference to his pharmacy qualifications or background, and also did not include any images associated with health professionals such as laboratory coats, medical uniforms or medical instruments such as stethoscopes. They did not believe the average consumer was likely to seek or expect health advice or recommendations from a scientist. They also believed that no consumer who saw the disclaimer would still be left with the impression that Professor Beckett was a health professional.
They provided submissions and evidence regarding intellectual property protection over the name and image of Professor Beckett. They believed that Article 28(2) of the Regulation meant that, if they were an unauthorised health claim, that protection allowed their continued use until 19 January 2022.
Clearcast did not believe that the reference to Professor Beckett was in any way a recommendation by a health professional, and that it was instead an endorsement of the company as a whole, highlighting its scientific pedigree. They said the claim in the voice-over, "... developed with pioneering British scientist Professor Arnold Beckett" was not a recommendation, and that even if it was perceived as one it was not directly related to a health claim.
Assessment
1. Not upheld
The ASA considered the references in the ad to the product names "Wellman" and "Wellwoman" and to "tailored vitamins for men and women" were a general health claim that the products were beneficial to the health of men and women respectively. We noted that non-specific health claims for food products, whether they were stated or implied, must be accompanied with a specific health claim, authorised on the EU Register of Nutrition and Health Claims Made on Foods. The ad included the authorised health claim "iron which helps reduce tiredness and fatigue" and we considered it made clear that the claim related to both products. The authorised health claim related to the general healthy population, and we considered that the non-specific health claims were targeted at men and women as part of the general healthy population only. We therefore concluded that the implied general health claim in the ad complied with the Code.
On this point we investigated the ad under BCAP Code rules
13.4
13.4
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) are permitted in advertisements.
Only health claims listed as authorised in the EU Register or claims that would have the same meaning for the audience may be used in advertisements:
www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
13.4.2
13.4.2
Advertisements 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. Advertisements must not give a misleading impression of the nutrition or health benefits of the product as a whole and factual nutrition statements should not imply a nutrition or health claim that cannot be supported. Claims must be presented clearly and without exaggeration
and
13.4.3
13.4.3
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) and
13.7
13.7
Advertisements must not state or imply that a balanced and varied diet cannot provide appropriate quantities of nutrients in general. Individuals must not be encouraged to swap a healthy diet for supplementation.
1 (Vitamins, minerals and other food supplements) but did not find it in breach.
2. Upheld
The BCAP Code stated that health claims that referred to the recommendation of an individual health professional were not acceptable in ads for foods or food supplements. The claim in the voice-over, "They were developed with pioneering British scientist Professor Arnold Beckett" was qualified by on-screen text which stated "Prof. Beckett is cited as a product inventor and former Vitabiotics chairman, not as a health professional", although the text was not shown at the point the voice-over claim was made and was therefore less likely to be noticed by viewers. The ad contained both a general and a specific health claim. The reference to Professor Beckett followed the specific health claim relating to iron and he was referred to as the inventor of the product featured in the ad for which the health claims were made. We therefore considered the ad linked Professor Beckett with the featured health claims, and that he was making a recommendation of the products.
We noted that published Department of Health guidance on the Regulation stated that if a health professional were to recommend a product bearing an authorised health claim, the two components would need to be separated in presentation to the consumer to avoid the two being read together as an unauthorised health claim. Furthermore it stated that, in their view, it would not be permissible to include a statement such as 'Developed with Professor XX' in a food supplement advertisement bearing a health claim.
The voice-over referred to Professor Beckett as a "pioneering British scientist" and, in the context of an ad for food supplements, we considered viewers would understand him to be a health professional with expertise in that field. Vitabiotics had referred to UK legislative definitions of "health professional". However, we considered that the parameters of the term would vary depending on the specific area being legislated for and that those definitions were not directly relevant to the interpretation of EU Regulations. We also noted that although the ad did not specifically refer to his pharmacy qualifications, Professor Beckett had been a former president of the Royal Pharmaceutical Society of Great Britain, which at the time was the statutory regulatory and professional body for pharmacists and pharmacy technicians in England, Scotland and Wales. Although we acknowledged that individuals were unlikely to seek personal health care advice from a scientist, we considered that a recommendation from a scientist with an expertise in the relevant field was likely to influence consumers' purchasing decisions.
We noted the ad included on-screen text which stated "Prof. Beckett is cited as a product inventor and former Vitabiotics chairman, not as a health professional". However, the Code stated that ads for foods must not include health claims that referred to the recommendation of an individual health professional and we therefore considered that a disclaimer was not sufficient, because the overall impression of the reference to Professor Beckett in the ad was of a recommendation by a health professional.
Vitabiotics had provided evidence that they had referred to Professor Beckett on their packaging since before 2005. Article 28(2) of the Regulation stated "Products bearing trade marks or brand names existing before 1 January 2005 which do not comply with this Regulation may continue to be marketed until 19 January 2022 after which time the provisions of this Regulation shall apply". However, we did not consider that the evidence supplied by Vitabiotics was sufficient to demonstrate that the references to Professor Beckett were brand names or unregistered trade marks that would have been protected by the common law action of passing off before 1 January 2005. In particular, the evidence did not demonstrate that Professor Beckett's name and image had functioned as badges of origin for Vitabiotics' products pre-2005.
We concluded that the ad made a health claim that referred to the recommendation of an individual health professional and therefore breached the Code.
On this point the ad breached BCAP Code rules
13.4
13.4
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) are permitted in advertisements.
Only health claims listed as authorised in the EU Register or claims that would have the same meaning for the audience may be used in advertisements:
www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
and
13.6.3
13.6.3
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) and
13.7
13.7
Advertisements must not state or imply that a balanced and varied diet cannot provide appropriate quantities of nutrients in general. Individuals must not be encouraged to swap a healthy diet for supplementation.
1 (Vitamins, minerals and other food supplements).
Action
The ad must not be broadcast again in its current form. We told Vitabiotics Ltd not to make the claim "They were developed with pioneering British scientist Professor Arnold Beckett" or other health claims that referred to the recommendation of an individual health professional in ads for food supplements which included health claims.
BCAP Code
13.4 13.4.2 13.4.3 13.6.3 13.7
