Who: The Advertising Standards Authority (ASA) and Femtech Healthcare Ltd t/a KeyForHer
Where: United Kingdom
When: 26 June 2024
Law stated as at: 9 July 2024
What happened:
KeyForHer is a manufacturer of food supplements. In April 2024, the ASA’s artificial intelligence (AI) monitoring systems identified a paid advertisement on social media that featured a person talking about food supplements and making the following claims:
- “It’s the most comprehensive menopause support supplement that’s out there, it also works for perimenopause, it also works for post-menopause”.
- “[F]rom helping with mood, to brain fog, to hot flushes, to night sweats, to just all over, feeling so much better, more energy, and better sleep, that’s what every woman wants”.
- “[J]ust try a box for a month […] see how you get on first, and let us know, I bet you you’ll see a difference”.
- “[I]t also supports your immunity, your bone health, your heart health, and cognitive function”.
The ASA held that the advertisement breached the UK Code of Non-Broadcast Advertising and Direct and Promotional Marketing (CAP Code) (edition 12) rules 15.1, 15.1.1, 15.2, 15.6 and 15.6.2 (food, food supplements and associated health or nutrition claims) and rule 15.7 (food supplements and other vitamins and minerals).
As a result, the ASA ruled that the advertisement must not appear again in its current form. This was based on the following four considerations.
1. Claims to treat diseases are prohibited for food and food supplements
The advertisement made claims about the effects of the food supplement such as “from helping with mood, to brain fog, to hot flushes, to night sweats, to just all over, feeling so much better, more energy, and better sleep“. The ASA found that these claims would likely be understood by consumers to mean that the food supplement was able to resolve the symptoms of perimenopause and menopause. These claims (those which state or imply that a food can prevent, treat or cure human disease) are strictly prohibited for food supplements.
Claims in relation to preventing, treating or curing human diseases are considered to be medicinal or medical claims, and these can only be made in relation to a licensed medicinal product or medical device.
2. Avoid rewording claims where the meaning – that is, authorised on the GB NHC register – is changed
The advertisement made a claim that their food supplement “supports your immunity”. The ASA considered that KeyForHer’s claim was an exaggerated version of the authorised claim (from the Great Britain nutrition and health claims (GB NHC) register) which was “contributes to the normal function of the immune system”.
According to the ASA, the authorised claim made it clear that the nutrients played a role in the normal function of the immune system. However, by removing the reference to “normal” function, the claim in the advertisement implied that the food supplement actually boosted the immune system instead. As a result, the ASA found that the exaggerated version and authorised version of the claim meant that the claims were unlikely to have the same meaning for consumers and therefore breached the CAP Code.
Specific health claims must be presented clearly and without exaggeration. While the ASA acknowledged that marketers could exercise some flexibility in relation to rewording claims, this is subject to the requirement that reworded claims need to have the same meaning for consumers as the authorised health claim.
3. Health claims must be clearly attributed to the specific nutrient named in the authorised claim on the GB NHC register
The advertisement implied that the health claims were in relation to the whole product, which contained various vitamins and nutrients, as opposed to specifically the vitamins and minerals that were listed in relation to the authorised claim on the GB NHC register.
The ASA understood that KeyForHer’s food supplement contained sufficient quantities of all the relevant vitamins and mineral to meet the conditions of the GB NHC register’s authorised claims “contributes to the normal function of the immune system” and “contributes to normal cognitive function”.
However, because the claims did not accurately reflect the wording of the authorised claim on the GB HNC register in relation to specific vitamins and nutrients, the ASA found that the advertisement breached the CAP Code.
4. General health claims need to be accompanied by specific health claims
The ASA considered that the claim “it also supports your bone health, your heart health…” would be a general health claim as it would be understood as a general benefit of the product for the overall good health of bones and the heart. This claim would, therefore, only be acceptable if accompanied by authorised health claims relating to specific beneficial physiological functions of bone and the heart. The advertisement did not contain such claims and therefore the ASA found that the advertisement breached CAP Code.
Why this matters
The ASA continues to monitor closely the use of claims relating to the treatment of symptoms of menopause, and this ruling is one of multiple recent rulings in this area (see here for our report on another recent ruling).
As previously, this ruling provides another reminder that even though menopause itself is not considered by the ASA to be a medical condition (see this ASA news article for more), claims that your product can treat the symptoms of the menopause are likely to be considered as medicinal in nature. Medicinal claims can then only be made in relation to medicinal products, and are prohibited in relation to food supplements.
Instead of medicinal claims, claims for food supplements aimed at those who are experiencing menopause should focus on meeting the requirements to use authorised nutrition and health claims under the GB NHC register. When doing so, this ruling also highlights that a high level of care is required when using authorised claims from the GB NHC register, particularly when a marketer wishes to reword the claim as the original meaning of the authorised claim cannot be changed or exaggerated.
