Who: The Advertising Standards Authority (ASA) and Tonic Nutrition Ltd t/a Tonic Health (Tonic Health)
Where: United Kingdom
When: 15 May 2024
Law stated as at: 31 May 2024
What happened:
Tonic Health is an online retailer of vitamin supplements and received a complaint from a competitor (Bayer plc, which manufactures Berocca products) in relation to two advertisements.
Tonic Health’s website in November 2023) featured product claims in relation to a “Daily Immunity” supplement. As part of this, there was a comparison table featuring various competitor products, along with comments such as “We out-vitamin the competition so you can upgrade your health game” and “Dump the Junk. Dump the sugars, chemicals and fillers. It’s a simple solution to make you feel you“.
A social media video in March 2024 was posted after Bayer’s ASA complaint, included comments such as: “Big pharma are coming for us” and “…the bad boys Berocca sent an official complaint to the ASA because they don’t like the fact that we’re telling you what’s in their products and what the facts are for what’s healthy”. The video also made a direct comparison to Berocca’s products with comments in relation to price, vitamin comment and a wider claim that “They don’t want to look after your health like we do, so go get your Tonic and look after your health.”
The ASA upheld the complaints on both advertisements, which must not appear again in their current form. This was based on the following considerations.
No authorised claims for generalised ‘high in vitamins’ or ‘increased vitamins’
The Tonic Health website featured a table comparing the total vitamin content in the tonic health supplement against various competitor products. The ASA held that this table inferred that the tonic health supplement was “high in vitamins” (a nutrition claim) and contained more vitamins overall than the competitor products (a comparative nutrition claim).
Neither claim was authorised on the Great Britain nutrition and health claims (GB NHC) register. There is simply no authorised generalised “high in vitamins” nutrition claim on the GB NHC register and, while the ASA considered that the attempted comparative nutrition claim had the same meaning as “increased [name of nutrient]”, that claim was permitted only for reference to specific named nutrients rather than vitamins generally.
The ASA held that the website breached the UK Code of Non-broadcast Advertising and Direct and Promotional Marketing (CAP Code) (Edition 12) rules 15.1 and 15.1.1 (Food, food supplements and associated health or nutrition claims).
Check the calculations for any sugar content and “reduced sugars” claims
The Tonic Health website featured a comment “dump the sugars” next to a table comparing the total sugar content in the tonic health supplement (which is sugar free) against various competitor products. The ASA considered this to be a “reduced sugars” comparative nutrition claim.
However, the ASA understood that website misrepresented the sugar content of competitor products and the tonic health supplement actually did not contain less sugar than Berocca, which meant the requirements for using the claim under the GB NHC register were not met.
The ASA therefore held that website breached CAP Code (edition 12) rules 15.1 and 15.1.1 (food, food supplements and associated health or nutrition claims).
Avoid denigrating competitors
The social media video stated that “… the bad boys Berocca sent an official complaint to the ASA because they don’t like the fact that we’re telling you what’s in their product and what the facts are for what’s healthy” and “They don’t want to look after your health like we do“. The ASA considered that these claims were unverified and implied negative motivations by Bayer; went beyond a factual and informative comparison about the relative nutritional value of the products; and were denigratory about Berocca.
The ASA concluded that the advertisement discredited and denigrated a competitor product and breached CAP Code (edition 12) rule 3.42 (imitation and denigration).
Consider the context of potentially ambiguous wording used in ads
The Tonic Health website showed a table comparing the amount of vitamins in various food supplements and was accompanied by the comment “Dump the Junk” and further text stating “Dump the sugars, chemicals and fillers“. While Tonic Health maintained that the phrase “dump the junk“was referring to “junk food“to mean foods with low nutritional value and to highlight products with sugar and artificial ingredients, the ASA considered that this phrase went beyond a factual and informative comparison about the relative nutritional value of the products.
Instead, the ASA considered that the phrase “dump the junk” was used by Tonic Health to infer that their product was of a higher quality than competitor products, and that consumers should therefore avoid competitor products, and that the use of the term “junk” in this specific context was a pejorative comment.
As above, the ASA concluded that the advertisement denigrated a competitor product and breached CAP Code (edition 12) rule 3.42 (imitation and denigration).
Why this matters:
In a crowded product market, comparative advertising can help distinguish your product from competitor’s products. However, companies wishing to use comparative advertising should ensure that they comply with the strict requirements, including the requirement not to discredit or denigrate other products, marketers, trade marks, trade names or other distinguishing marks. Also, making direct comparisons against identifiable companies and products significantly increases the likelihood of higher scrutiny and complaints from the companies mentioned.
This ruling also serves as a reminder of the strict requirements around nutrition and comparative nutrition claims, and the need for companies to pay close attention to the specific details of authorised claims on the GB NHC register.
