Several ASA adjudications in recent months have highlighted the difficulties for advertisers in making any health claims about their products. The ASA have come down hard on those that fall foul of the CAP and BCAP Codes which require that, in relation specifically to health claims, advertisers must have evidentiary substantiation of any health claims made in advertisements, by way of documented scientific trials or otherwise. See our Ad Guide to Making Health Claims in Advertising for more detail.
The adjudications demonstrate that, despite the potential profitability in making health claims about their products, it is most probably not worth doing so if advertisers are unable to substantiate such claims when questioned.
In February this year, Healthspan Ltd found to their detriment that making numerous unsubstantiated claims in their brochures about food supplements was a costly affair when they were challenged by health food stores, Holland & Barrett Retail Limited on several counts. Holland & Barrett challenged health benefit claims made in Healthspan’s brochures relating to bilberry, devils claw, black cohosh, ginseng, echinacea, ginkgo biloba and milk thistle, questioning whether the efficacy claims were misleading and could be substantiated. They also challenged whether the claim “Happy Mood”, which appeared above products St John’s Wort and “Happy Days” in their ads, implied that those products could affect a consumer’s mood. The ASA also waded in by challenging other health claims made, such as the alleged sleep benefits of supplement Valerian, and the fact that Lipo-Carn had anti-ageing properties.
The ASA upheld all 8 of the complaints and required the claims to be removed from Healthspan’s advertising brochures. The ASA said in particular that medicinal or therapeutic claims could not be made if they were not substantiated by scientific evidence. They also reminded Healthspan that claims relating to mood enhancing could not be made without European Commission authorisation, and that they could not make medicinal or therapeutic claims for products unless they were registered with the Medicines and Healthcare Products Regulatory Agency.
Death really does begin in the waste clogged bowel
Other well-known brands have faced criticism from the ASA too, including Heinz, who had their knuckles rapped over health claims made in a television ad in relation to infant formula that could not be justified and Coca Cola, in the well-publicised Vitaminwater controversy, when ads claiming that the drink had “more muscles than Brussels” were found by the ASA to be misleading as to their health benefits. The brand was rebuked for marketing the drinks as being healthy when, in fact, the bottles were found to contain nearly a quarter of the recommended daily amount of sugar in only 500ml.
The issue is also of global concern. This month, Kellogg in the US was taken to task regarding its claims that Rice Krispies were beneficial to children’s’ immune systems in order to encourage sales. The company had to retract its campaign statements regarding the claims it made, because they did not comply with the US Federal Trade Commission requirement that health claims were truthful and not misleading.
What is clear is that if the media report on an upheld complaint by the ASA, the bad publicity surrounding the advertising campaign as a result of the breach of the Codes can only have negative implications for the overall impression of a brand, as well as incurring costs in retracting existing advertisements and creating new marketing material. Advertisers and brand owners are therefore reminded to take much more care in making claims about the alleged health benefits of the products being advertised, and keep painstaking records of the scientific evidence that can be submitted to substantiate such claims.
In January this year, Windsor Products faced a complaint from Liverpool Trading Standards and a member of the public over a national press ad for a book on “Expert’s Tips on Bowel Problems” that listed a number of bowel complaints and stated: “Death really does begin in the waste clogged bowel”. The ASA agreed with the company’s assertion that it was a health professional’s view on the matter and acknowledged that it had roots in an NHS website; however, the ASA upheld the complaint on the basis that the emotive statement as being likely to mislead readers into thinking that those with any of the listed conditions were at risk of death due to a bowel clogged with waste.