Who: The Advertising Standards Authority (ASA), Committee of Advertising Practice (CAP) and Bounce Back Drinks Ltd.
Where: United Kingdom
When: 22 January 2020
Law stated as at: 4 January 2020
What happened:
The ASA launched an investigation against an advertorial for a health drink featuring the following claims:
- “Bounce Back Drinks have launched the UK’s first After-Alcohol Revival Drink“;
- [Bounce Back Drink’s] “business was fully compliant with the European Food Safety Authority (EFSA), the Medicines and Healthcare products Regulatory Agency (MHRA) and Advertising Standards Authority (ASA) regulations…”;
- “Bounce Back has been clinically tested for efficacy … Bounce Back is the only drink in the UK with an authorised health claim by the EFSA that it supports normal liver function”; and
- “… a unique combination of amino acids, vitamins, minerals … specially selected to replenish nutrients and support liver function…”
The investigation considered whether the ad:
- implied endorsement or approval by the ASA, the EFSA and MHRA;
- contained claims that the product could prevent, treat or cure hangovers, which are were prohibited by the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code); and
- included health claims which are not authorised on the EU Register of Nutrition and Health Claims made on the foods (EU Register).
- The ASA upheld this complaint on all those points.
The ASA stated that although the advertiser had sought advice from the CAP’s Copy Advice team in relation to a couple of specific claims, the CAP Code states that ads must not refer to advice received from CAP or imply endorsement by the ASA or CAP.
- The CAP Code also requires ads to not claim that the marketer or product had been approved, endorsed or authorised by any public or other body if it has not. For example, the ASA understood that the MHRA had provided general guidance to the advertiser in relation to the marketing of medicinal products but that this did not constitute approval or endorsement by the MHRA.
- The ASA also ruled that the claims relating to being the “UK’s first After-Alcohol Revival Drink” would be understood by consumers to mean that the product could help to prevent, treat or cure a hangover as it implied that the product could help to “revive” people from the effects of alcohol consumption; such claims are prohibited under the CAP Code.
- Finally, the ASA looked at whether the claim that the “unique combination of amino acids, vitamins, minerals … specially selected to replenish nutrients and support liver function…” was permitted. Only health claims listed as authorised on the EU Register are permitted in marketing communications. While some flexibility can be exercised in rewording claims, the reworded claim must have same meaning for consumers as the authorised claim. The ASA ruled that the claim removed key authorised wording and exaggerated the authorised health claim.
Why this matters:
Advertisers should take care not to imply endorsements from the ASA and other bodies – note that receiving advice does not constitute endorsement or approval. As demonstrated here, the ASA will proactively launch its own investigations to challenge ads that suggest endorsement or approval from the ASA and other regulatory bodies.
Secondly, advertisers should also ensure any ads that contain health claims or other efficacy claims comply with the CAP Code and (as appropriate) the EU Register.
