ASA Adjudication on Duchy Originals Ltd
Duchy Originals Ltd
The Olde Ryde House
393 Richmond Road
6 May 2009
Health and beauty
Number of complaints:
A promotional e-mail, for a range of organic products, had the subject heading "New Herbal Tinctures plus 10% off Garden Organic Membership". Text below stated "If you haven't managed to escape the winter sniffles, look no further than our new Echina-Relief Tincture, which offers natural relief from cold and flu symptoms … Our Echinacea, Hypericum and Detox Tinctures provide alternative and natural ways of treating common ailments such as colds, low moods and digestive discomfort …".
The complainant challenged whether the efficacy claims in the ad could be substantiated for:
2. Hypericum and
3. Detox Tinctures.
CAP Code (Edition 11)
1. & 2. Duchy Originals Ltd (Duchy) said Echina-Relief Tincture and Hypericum were registered herbal medicines, which had been licensed by the Medicines and Healthcare products Regulatory Agency (MHRA) and were fully compliant with the Traditional Herbal Medicines Directive. They sent copies of the licences and said that the approved on-pack claims for the products were "Echina-Relief is a traditional herbal medicine product used to relieve the symptoms of common cold and influenza-type infections, based on traditional use only" and "Hyper-lift Tincture is a traditional herbal medicinal product that has been used to relieve the symptoms of slightly low mood and mild anxiety, based on traditional use only".
3. They said the Detox Tincture was positioned as a food supplement and not a medicinal product. They acknowledged that it could not claim to cure or treat any medical conditions or illnesses, only that it could help to eliminate toxins and aid digestion, which were claims related to normal bodily functions and not diseases.
1. & 2. Upheld
The ASA noted Echina-Relief and Hyperi-Lift Tinctures were registered by the MHRA under the Traditional Herbal Medicines Registration Scheme. We noted the Scheme implemented the requirements of the Traditional Herbal Medicines Directive. Products registered under the Scheme must meet established standards of safety and quality for medicines but, instead of the recognised efficacy standards required for a marketing authorisation, the product must have been used for at least 30 years to demonstrate long-standing traditional use in the specified conditions of use. Registration under the Scheme required that all advertising for registered products stated clearly in the body copy "traditional herbal medicinal product for use in [specified indications] exclusively based upon long standing use as a traditional remedy" (this exact wording had to be used). That statement was intended to inform consumers that the efficacy of the product was not scientifically supported but claims were based only on evidence of long-standing use.
We noted the ad did not include the required statement that the claims about the efficacy of Echina-Relief and Hyperi-Lift Tinctures were based only on their long standing use. We considered that the ad suggested the products had scientifically proven benefits for treating colds and low moods. Because they did not, we concluded that the ad was misleading.
On these points, the ad breached CAP Code clauses 3.1 (Substantiation), 7.1 and 7.2 (Truthfulness), 50.1 and 50.7 (Health and beauty products and therapies) and 50.19 (Medicines).
We noted that it was intended that the Detox Tincture was presented as a food supplement that could help eliminate toxins and aid digestion. We considered however that the claim that it could "treat ... digestive discomfort" implied that Detox Tincture had scientifically proven benefits. Because we had seen no evidence for the efficacy of Detox Tincture, we concluded that the ad was misleading.
On this point, the ad breached CAP Code clauses 3.1 (Substantiation), 7.1 and 7.2 (Truthfulness) and 50.1 and 50.7 (Health and beauty products and therapies) and 50.19 (Medicines).
The ad must not appear again in its current form. We told Duchy to ensure that ads for registered Traditional Herbal Remedies did not imply that the efficacy of the products was proven. We also told Duchy not to make claims about Detox that they could not substantiate.
Adjudication of the ASA Council (Non-broadcast)