Following controversy about Mars’ claims that polyphenol, an element naturally occurring in cocoa plants, can help keep your heart healthy.
Who: Nestlé, Shropshire Trading Standards
When: Late May 2000
Where: Shrewsbury Magistrates Court
Following controversy about Mars’ claims that polyphenol, an element naturally occurring in cocoa plants, can help keep your heart healthy, Johnson & Johnson’s claims that its Benecol margarine can help reduce cholesterol and similar claims made by Van den Bergh for its Flora pro-activ, Nestlé have actually been prosecuted for making illegal "medicinal" claims in on-pack promotional copy.
As part of a laudable campaign to encourage Shredded Wheat eaters to join the British Heart Foundation’s "Healthy Heart" movement last year, product packs carried a four step "Lifestyle Guideline."
This "invited the irresistible inference", the magistrate held in the ensuing Shropshire Trading Standards prosecution, "that eating Shredded Wheat will reduce the risk of coronary heart disease". This classified as a "medicinal" claim and as the product was not licensed as a medicine, Nestlé was convicted of an offence under the 1968 Medicines Act, fined £7500 and ordered to pay £13601 prosecution costs. Nestlé dispute the verdict and threaten an appeal
Why this matters:
Any product can be rendered "medicinal" by its packaging or advertising and thus subject to drug licensing and advertising rules. In essence, any suggestion, express or implied, that the product can be used "wholly or mainly" for the purpose of treating or preventing any disease, including any adverse condition of the body or mind, can bring the authorities down on the head of the advertiser. This can be by way of a prosecution under the Medicines Act 1968 or the 1990 Food Safety Act or perhaps the 1968 Trade Descriptions Act. The makers of Mornflake Oats had a similar experience to that of Nestlé in 1993 with links between the product and cholesterol levels/heart disease suggested in on-pack copy about a book promotion. Whether a product is a so-called "functional food" or not, therefore, advertisers and agencies must take extreme care in how these references are worded. References to how a product can help maintain health may be the better way, but advice should be taken in each case.