Who: The Advertising Standards Authority (ASA) and various companies
Where: United Kingdom
When: 24 July 2024
Law stated as at: 20 August 2024
What happened:
Food supplement claims continue to be an area of focus for the ASA, which has made the most of its Active Ad Monitoring system by the successful identification of instances where advertisements for food supplements have breached advertising rules.
Most recently, on 24 July 2024, the ASA published six rulings in relation to claims on food supplements, and which were all upheld. These included:
- Ejec Ventures LLC t/a Auri Nutrition;
- Innocent Health Ltd t/a Novomins Nutrition;
- Person(s) unknown t/a Vitality Greens;
- Nowt Ventures Ltd t/a Feel Güd;
- Nutriburst Ltd t/a Nutriburst Vitamins; and
- Well Gummies.
Rulings’ five takeaways
1. Claims to avoid (particularly around anxiety and ADHD)
As per the UK Code of Non-broadcast Advertising and Direct and Promotional Marketing (CAP Code 15.6.2), claims that state or imply that a food prevents, treats or cures human disease are prohibited. While food supplements are defined as a concentrated source of nutrients or other substances with a nutritional or physiological effect, they are a type of food and not a type of medicine; therefore, medicinal claims – those saying that a product can help diagnose, treat or prevent any kind of disease, injury or adverse condition, whether physical or mental – for food supplements are prohibited.
The recent ASA rulings have demonstrated that the regulator takes a strict approach in relation to what it considers to be preventing, treating or curing a disease. Examples of prohibited claims in relation to food supplements and its relation to disease included references to:
- Eliminating anxiety or its symptoms such as “a secret weapon to eliminate stress” and “crush stress“.
- Reducing or managing levels of anxiety or its symptoms, such as “reduced stress and anxiety“, “combat stress” and “my stress levels are finally stable“.
- Prevention of disease, such as “prevent future diseases“.
- Cure of disease, such as “clears acne“.
2. Check if your claim is permitted and make sure the claim is not exaggerated
As per CAP Code 15.1 and 15.1.1, only health or nutrition claims that are authorised on the Great Britain nutrition and health claims register are permitted in marketing communications for food or food supplements.
Claims across the rulings were found to be prohibited because:
- Claims were not authorised on the GB register. While one of the advertisements referred to sleep quality such as “Prepare for a good night’s [sic] sleep” and “deeper sleep“, the ASA confirmed that there are no authorised health claims relating to sleep quality on the GB register.
- Claims were theoretically authorised on the GB register but the conditions for using the claim were not met. For these, the ASA did not see any evidence that the specific food supplements or ingredients met the relevant requirements under the GB register in order for that health claim to be lawfully used (for example, claims for “reducing fatigue” or “cognitive functions” are authorised in specific conditions on the GB Register, but not in relation to the specific ingredient, Ashwagandha KSM-66, mentioned in an advertisement).
- Claims were authorised on the GB register but used in an exaggerated manner. The ASA found that the claim “contributes to the reduction of tiredness and fatigue” was authorised on the GB register for both niacin and vitamin B12 and that the product contained sufficient quantities of both of these vitamins to meet the conditions of use for the authorised claim. However, the claim was used without the phrase “contributes to“, and, instead the phrase “reduction in tiredness and fatigue” in isolation was likely to exaggerate the actual meaning of the claim.
3. General health claims need to be accompanied by a specific health claim
As per CAP Code 15.2, references to general benefits of a nutrient or advertised for overall good health or health-related well-being are acceptable only if accompanied by a specific authorised health claim.
General health claims are claims that refer to the general benefit of a nutrient or food for overall good health or health-related well being). Examples of general health claims from the ASA’s recent rulings include “unlock a stronger body and state of mind“, “promoting a healthy heart” and “refuel your brain naturally“. These were all claims that were used without a specific health claim and were, therefore, in breach of the CAP Code.
4. Consider the meaning of buzz words such as ‘adaptogen’, ‘nootropic’ and ‘antioxidant’
In the rulings against Nowt Ventures Ltd t/a Feel Güd and Ejec Ventures LLC t/a Auri Nutrition, the ASA acknowledged that while some consumers may not be familiar with terms such as “adaptogen”, “nootropic” and “antioxidant”, these were considered to be specific health claims.
- Nootropic was understood to describe substances which enhanced cognitive function (for example, the food supplement would help with cognitive function and mental performance);
- Adaptogen was understood to describe natural substances believed to help the body respond to stress; and
- Antioxidant was understood to refer to the function of a substance on the body whereby it helped to protect cells from oxidative stress.
5. Take care with using novel foods as ingredients
As per CAP Code 1.10, advertisements need to comply with the law. In the UK, novel foods require relevant authorisation before it can be lawfully marketed and sold. In this series of rulings, the ASA identified that the ingredient “trametes versicolor” also known as “turkey tail mushroom“) was likely to be considered by the Food Standards Agency to be an unauthorised novel food; therefore, the ASA considered that the ingredient and products containing that ingredient should not be sold in the UK (and by virtue of that status could not be lawfully advertised).
Why this matters
The regulation of food supplements advertising is complex. With a growing market share and consumer appetite in food supplements, manufacturers should ensure that their advertising is compliant.
Manufacturers of food supplements should:
- Be aware of the heightened scrutiny and regulatory enforcement in this area, particularly in relation to perceived medicinal claims. With the proactive use and capabilities of the ASA’s Active Ad Monitoring system, this has meant that there is higher risk of advertisements being investigated, even where no complaint has been made. The common themes across these six rulings demonstrate the potential reach and capabilities of the ASA’s monitoring system; for example, picking up prohibited claim wording, non-authorised ingredient names in advertising, etc.
- Closely review their food supplement claims to ensure that only authorised health and nutrition claims (as per the GB register) are used, and the claims are used correctly; for example, in line with the requirements in the GB register and not exaggerated. Manufacturers should also review recent rulings and relevant ASA guidance – for example, CAP advice on health claims and supplements and ASA Health Claims Advice – to better understand the fine line between making a permitted nutrient or health claim compared to a prohibited medicinal claim.
