Background
This Ruling forms part of a wider piece of work on claims that food supplements treat anxiety. The ads were identified for investigation following intelligence gathered by our Active Ad Monitoring system, which uses AI to proactively search for online ads that might break the rules. See related rulings published on 24 July 2024.
Summary of Council decision:
Four issues were investigated, all of which were Upheld.
Ad description
Two paid-for Facebook ads and a paid-for TikTok ad for supplement company Well Gummies, seen in March 2024:
a. The first Facebook ad included a testimonial which stated “I was extremely skeptical overall because of what the product promises but I am so absolutely thrilled with the results. I feel so sharp and focused with increased energy overall. I’m going to be ordering some for my 83 year old mom who is struggling with memory fog and fatigue. I cannot wait for her to try them. Hannah W”. An image below featured a packet of Well Gummies with the text “All-day Energy, Laser Focus, Zen and Relaxed”. Further text stated “TURKEY TAIL Digestion, LIONS MANE Focus & Memory, CHAGA Anti-Stress, CORDYCEPS Energy & Stamina, REISHI Immunity”.
b. The second Facebook ad included the same testimonial as ad (a). An image below featured a packet of Well Gummies with the text “Refuel your brain naturally. Chaga for Stress Relief, Cordyceps for Stamina, Lion’s Mane for Focus, Reishi for Immunity”. Further text stated “Fights Stress, Boosts Focus, Zen Energy, Immunity”.
c. The TikTok ad featured a voice-over which stated, “If someone with ADHD ate these three mushrooms, this is what would happen to their body. Studies show Lion’s Mane significantly reduces symptoms of anxiety and depression, while improving focus and concentration, as it destroys brain fog and enhances cognitive ability. The second one is chaga. Chaga massively increases energy as it battles fatigue and boosts your immune system to prevent future diseases. The third one is Cordyceps. Cordyceps clears acne as it contains powerful antioxidants that kill the bacteria which allows acne to grow, all while promoting a healthy heart. These Well Gummies contain all three of these potent mushrooms along with five other ones.”
Issue
1.The ASA challenged whether the references to “stress” in ads (a) and (b), and the reference to ADHD and the claims “reduces symptoms of anxiety and depression”, “prevent future diseases” and “clears acne” in ad (c), implied that the product could prevent, treat or cure human disease, which was prohibited by the Code.The ASA also challenged whether the following claims breached the Code:
2. the specific health claims in all the ads; and
3. the general health claims in all the ads
.4. The ASA challenged whether Turkey Tail mushroom, an ingredient in the gummies, had the relevant authorisation for marketing, because we understood it was a 'novel food'.
Response
1., 2. & 3. Well Gummies said they cut the ads mentioning the health benefits of the supplements and stopped targeting their ads to UK consumers.Assessment
1. Upheld
The CAP Code (which reflected legislation) prohibited claims that stated or implied a food could prevent, treat or cure human disease.
The ASA considered the references to “stress” in ads (a) and (b) were likely also to be understood in relation to anxiety. In addition to those references, we understood the allusion to ADHD and the claims “reduces symptoms of anxiety and depression”, “prevent future diseases”, and in ad (c) “clears acne”, were, for the purposes of the legislation reflected in the Code, claims to prevent, treat or cure disease, which were prohibited for food and food supplements. We concluded that they therefore breached the Code.
On that point, ads (a), (b), and (c) breached CAP Code (Edition 12) rules 15.6 and 15.6.2 (Food, food supplements and associated health or nutrition claims).
2. UpheldThe CAP Code required that only health claims authorised on the Great Britain nutrition and health claims register (the GB Register) were permitted in marketing communications for food or food supplements. The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food or ingredient, and health.
We considered the claims related to energy and fatigue, which included “All-day Energy” and “Energy & Stamina” in ad (a), “Zen Energy” in ad (b), and “increases energy as it battles fatigue” in ad (c), would be understood by consumers to mean that the supplement would improve energy levels and reduce tiredness and physical and mental fatigue. The claims relating to focus, memory and brain fog, which included “sharp and focused”, “Laser Focus”, and “Focus & Memory” in ad (a), “Boosts Focus” in ad (b), and “improving focus and concentration”, “destroys brain fog”, and “enhances cognitive ability” in ad (c), would be understood as meaning that the supplement would help cognitive function and mental performance. Further, we considered the claims related to bodily function, which included “Digestion” in ad (a), “Immunity” in ads (a) and (b), and “boosts your immune system” in ad (c), would be understood as meaning that the supplement would help the digestive and immune system.
We considered those claims were specific health claims for the purposes of the Code, because they implied that the gummies, which included the ingredients Turkey Tail, Cordyceps, Lion’s Mane, Chaga, and Reishi, had the beneficial health effects listed above. However, we had not seen any evidence which demonstrated that those claims were authorised on the GB Register in relation to the supplement or any of its ingredients, and they therefore breached the Code.On that point, ads (a), (b), and (c) 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).
3. Upheld
The CAP Code also stated that general health claims could be made in relation to foods only if they were accompanied by a relevant specific, authorised health claim. General health claims were defined as those referring to a general benefit of a nutrient or food for overall good health or health related well-being.Ads (a)?(c) included the claim “Well Gummies”, ad (b) featured “Refuel your brain naturally”, and ad (c) included “promoting a healthy heart”. We considered these to be general health claims for the purposes of the Code. However, the ad did not contain any specific authorised health claims.Because the ads featured general health claims that were not accompanied by any specific authorised health claims, we concluded that they breached the Code.On that point, ads (a), (b), and (c) breached CAP Code (Edition 12) rules 15.2 (Food, food supplements and associated health or nutrition claims) and 15.7 (Food supplements and other vitamins and minerals).
4. Upheld
Ad (a) contained the text “TURKEY TAIL” (Trametes versicolor) and we therefore understood that the gummies contained that ingredient. We understood that Trametes versicolor was likely to be considered by the Food Standards Agency (FSA) as an unauthorised novel food that did not have the relevant authorisation for marketing in the UK. Therefore it, and products containing it, should not be sold in the UK.
The ingredients list also indicated that the product contained Cordyceps mushroom, although it did not specify which species. While certain species of Cordyceps were not considered to be a novel food in food supplements, we understood that Cordyceps militaris was considered by the Food Standards Authority (FSA) to be likely to be an unauthorised novel food. We noted we had not received confirmation from Well Gummies as to which species of Cordyceps was included in the product.Because the ads had the effect of marketing an unauthorised novel food when it was not legal to do so, we concluded they breached the Code.On that point, ads (a), (b), and (c) breached CAP Code (Edition 12) rule 1.10 (Legality).
Action
The ads must not appear again in the form complained of. We told Well Gummies to ensure their ads did not make claims that a food or food supplement could prevent, treat or cure human disease. We also told them to ensure any specific health claims were authorised on the GB Register and complied with the conditions of use for those claims, and that any general health claims were accompanied by a relevant authorised specific health claim. We told them not to market any products which contained unauthorised novel foods to UK consumers until such time as they were authorised.
BCAP Code
CAP Code (Edition 12)
15.6 15.6.2 15.1 15.1.1 15.2 15.7
