ASA Adjudication on Herbs In A Bottle Ltd
Herbs In A Bottle Ltd
Meadow Park Industrial Estate
Bourne Road
Essendine, Nr Stamford
Lincolnshire
PE9 4LT
Date:
15 February 2012
Media:
E-mail
Sector:
Health and beauty
Number of complaints:
1
Complaint Ref:
A11-166586
Ad
An e-mail for a supplier of herbal products was headed "HERBS in a BOTTLE". The e-mail stated Our Silyburn marianum or Milk Thistle Seeds comes from the Stara Planina area of Bulgaria. This mountainous region has exactly the right climate and temperature fluctuations for producing seeds with the highest content of Silymarin due to the combination of hot sun, compacted soils and a sheltered position from winds (which tend to dissipate the seeds if the seed heads are left too long in the field)". Further text stated "As the seed heads mature at different rates the grower needs to be constantly vigilant and the picking teams have to operate on a weekly basis during the harvest time (this is one of the reasons why mechanical harvesting is not advised as ripe and unripe seed heads will get mixed together)" and "Independent testing has consistently shown that the tincture produced by Herbs In A Bottle contains significantly higher amounts of flavano lignands than any other herbal medicine manufacturer in the United Kingdom".
Issue
Rutland Biodynamics Ltd challenged whether the ad was misleading because:
1. they did not believe the claim, "This mountainous region has exactly the right climate and temperature fluctuations for producing seeds with the highest content of Silymarin" could be substantiated;
2. they believed that seeds within a single seed-head were at different stages of growing and therefore challenged the comparison made between picking and mechanical harvesting; and
3. they did not believe that the advertiser could substantiate that their tincture contained higher amounts of flavano lignands than others in the UK.
CAP Code (Edition 12)
Response
1. Herbs In A Bottle Ltd (HIAB) submitted extracts from two Canadian Governments' websites that discussed the production of Silybum marianum as a commercial crop. One website stated that the plant preferred, "dry well drained soil in full sun". This website also claimed that there was evidence that the plant produced higher levels of Silymarin with "higher temperatures and drier conditions". The second website stated that the plant was reported to do well in "compacted clay soils". They also submitted two articles that discussed the climate of the Stara Planina region. HIAB asserted that this demonstrated that the region had the perfect climate, as outlined in the Canadian websites, for producing seeds with the highest content of Silymarin.
2. HIAB pointed out that one of the websites also reported that hand picking yielded a superior quality seed. They said that fully ripe seeds were black in colour and they ensured that only these seeds were accepted.
3. HIAB stated that they regularly compared their tincture of Silybum marianum against their competitors. They said their tincture was one in three parts solution whilst the tincture sold by the complainant was one in five parts solution, therefore their solution, being the least diluted of the two, contained more flavano lignands.
HIAB also stated that Silybum was only very sparingly soluble in water, but was significantly more soluble in ethanol. They claimed therefore that a tincture produced in a higher ethanol content would have higher flavano lignands than one produced in a lower ethanol solution. They submitted two studies in support of this principle. They stated that their tincture was produced in a higher ethanol solution than that produced by the complainant therefore they claimed that their tincture contained higher amounts of flavano lignands.
They also said that a 2007 study had shown that their Silybum marianum tinctures contained significantly higher flavano lignands than those of others tested.
Assessment
1. Upheld
We noted one of the websites referred to by HIAB claimed that there was evidence that higher temperatures and drier conditions increased Silymarin production in Silybum marianum. We also noted the other website stated that the plant was reported to do well in compacted soil.
We noted the e-mail stated that the area in which HIAB grew their Silybum marianum had "exactly the right climate and temperature fluctuations for producing seeds with the highest content of Silymarin due to the combination of hot sun, compacted soils and a sheltered position from winds". We considered that this was an objective claim capable of substantiation with robust evidence that the area where HIAB grew their Silybum marianum had optimum conditions for the production of seeds with the highest content of Silymarin. We noted the websites submitted by HIAB stated that there was evidence that the plant preferred certain conditions; this evidence, however, was not produced. In the absence of suitably robust evidence in support of the claim we considered that it was unsubstantiated and therefore misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (substantiation) and 3.38 (Other comparisons).
2. Not upheld
We noted that the e-mail stated, "As the seed heads mature at different rates the grower needs to be constantly vigilant and the picking teams have to operate on a weekly basis during the harvest time (this is one reason why mechanical harvesting is not advised as ripe and unripe seed heads will get mixed together)". We considered readers would infer from this that products that came from hand-picked seed heads were more likely to contain a larger proportion of fully ripe seeds.
We noted HIAB said they ensured that only fully ripened seed heads were picked. We noted from the website that some seed heads would ripen early, shatter and lose at least a portion of their seeds before the majority of the crop was ready for harvesting.
Because seeds and seed heads ripened at different times over the harvest period, we considered that either form of harvesting would inevitably result in ripe and unripe seeds being mixed. However, we considered hand picking allowed for a greater measure of discretion in choosing which seed heads to harvest to ensure a greater proportion of fully ripe seeds and therefore a superior quality yield. Because of this we concluded that the claim was not misleading.
On this point we investigated the ad under CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (substantiation) and 3.38 (Other comparisons) but did not find it in breach.
3. Upheld
We noted the e-mail stated, "Independent testing has consistently shown that the tincture produced by Herbs In A Bottle contains significantly higher amounts of flavano lignands than any other herbal medicine manufacturer in the United Kingdom". We noted the response from HIAB concerning the concentrations and ethanol content of their tinctures versus that of Rutland Biodynamics Ltd however we considered that this was unsuitable evidence for the claim made in the e-mail.
We considered this claim should be substantiated by the production of the actual independent testing referred to, or similar independent testing that compared HIAB's tincture to that of the other UK herbal medicine manufacturers. We noted that HIAB were unable to provide this documentation at this time. However, we noted that rule 3.7 of the Code stated that "Before distributing or submitting a marketing communication for publications, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation". Because HIAB could not provide the independent testing referred to we concluded that the claim was unsubstantiated and therefore misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (substantiation) and 3.38 (Other comparisons).
Action
The e-mail must not be used again in its current form. We told HIAB to remove the claims investigated and found to be in breach of the Code until such time as they held adequate substantiation.
