Who: The Advertising Standards Authority (ASA) and Braincare Ltd (t/a Heights) (Heights)
Where: United Kingdom
When: 31 May 2023
Law stated as at: 9 June 2023
What happened:
Three advertisements from an online food supplement provider, Heights, in regards to their product called “Smart Probiotic” were seen via an email, website and a social media post.
These included:
- An email (October 2022), featuring text such as “no one had made a probiotic designed specifically with the gut-brain axis in mind, until we did. The strains in the Smart Probiotic are backed by over 380 scientific studies“
- A website page (October 2022), describing the Smart Probiotic as “our high-impact formula has 20 billion CFU’s [sic] of clinically-studied, proprietary strains, plus zinc, is [sic] the world’s first probiotic to support your gut and mind“, with further text that stated”[tick symbol] Gut health [tick symbol] Mental health [tick symbol] Immune health” and also making various claims such as “everything your gut needs in one daily capsule”.
- Social media post (January 2023), featured a video of Russell Brand discussing the Smart Probiotic with a comment that “Heights have launched the world’s first probiotic to support gut, brain, and immune health in one daily capsule, the smart probiotic, a product that targets gut health and your mental health and immunity in one. Help my digestion. Improve my mood in a miserable rainy January“.
All three adverts breached the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) and had to be removed. In doing so, the ASA considered the following issues:
- All health claims need to be authorised by the Great Britain nutrition and health claims (NHC) register and must meet the specific associated conditions of use
Although Heights stated that their product contained zinc, and made reliance on various claims in the GB NHC register relating to zinc (for example, “Zinc contributes to the normal function of the immune system”), the ASA held that none of the adverts referred to the action of zinc specifically and merely referred to the product name, Smart Probiotic, and other probiotics and bacteria etc. instead.
The ASA therefore considered that consumers would understand that all of the health benefits described in the ads were derived from the particular formulation of the product as a whole and, in particular, the bacterial strains it contained, as opposed to the zinc specifically. The relevant claims did not meet the specific associated conditions of use under the GB register and were therefore unlawful and not permitted.
- The use of ‘probiotic’ can be considered as a health claim
While Heights stated that they did not intend the “probiotic” part of their product name (and in their wider advertisement) to be a specific or general health claim, the ASA disagreed. Instead, the ASA flagged that none of the specific health claims in relation to probiotics (or any of the bacterial strains it contained) were on the GB register.
Additionally, the ASA considered that the claim “the smart probiotic […] targets gut health and your mental health and immunity in one” (among other claims) would mean that consumers were likely to understand that the “probiotic” part described a substance that contributed to the general good health of the gut, and the probiotic claims in relation to immunity etc. meant that the claimed impact of the product on gut health was accompanied by general benefits for users’ mental, cognitive or immunological health. Due to the absence of specific authorised health claims, these general claims were therefore not permitted either.
- Further examples of specific health claims
The ASA provided further examples of what they consider to be specific health claims which would have needed to appear on the GB register and be in line with the associated requirements to be lawful claims. This included claims such as: “to aid the process of digestive transit or support the function of the intestinal barrier”, “to have an antioxidant effect or support the immune system“, and to have an “effect on mental health, cognitive health and sleep“.
- Foods should not claim to prevent, treat or cure human disease.
The ASA considered that the direct references to adverse health conditions equated to medical claims that the Smart Probiotic was able to prevent, treat or cure human disease. For example, the claim “GI relief helps alleviate occasional GI discomfort, such as bloating, gas, constipation, and diarrhoea” was considered to be understood by consumers that the product could help to treat each of the adverse digestive conditions. Medical claims are not permitted on food products.
Why this matters:
The ASA continues to take a strict approach in regards to the advertisement of foods and food supplements with health benefits. This ruling serves as a reminder to manufacturers that nutritional and health claims are strictly regulated and must only be used if the criteria under the Great Britain nutrition and health claims register are met. Medical claims are also not permitted at all in relation to food.
