Background
Ad description
Claims for a joint pain food supplement on www.finitro.com <<http://www.finitro.com/>> seen in December 2013 stated "Finitro Forte Plus with Collagen Type II, a substance found naturally in the joints, stimulates the formation and repair of cartilage that has degenerated over time. The subject of many clinical studies over the past years, Finitro Forte Plus has proven effective at reducing joint problems." Further text below stated "Results of the independent researches: After 2 weeks you will experience less pain. After 4 weeks you will feel almost no pain in your joints. The cartilage begins to rebuild and you will see a slight improvement in joint greasing. After 8 weeks, the joint pain should disappear. The cartilage is being rebuilt and there is more joint greasing. After 12 weeks, you not only have no more pain, but your joints should also move much smoother. The rebuilding of cartilage and joint greasing are currently optimal. After continuous use of Finitro Forte Plus, you may expect the recovery of the cartilage and a life free of pain."
Issue
The complainant challenged whether the claims:
1. "After 2 weeks you will experience less pain",
2. "After 4 weeks you will feel almost no pain in your joints. The cartilage begins to rebuild and you will see a slight improvement in joint greasing",
3. "After 8 weeks, the joint pain should disappear. The cartilage is being rebuilt and there is more joint greasing",
4. "After 12 weeks, you not only have no more pain, but your joints should also move much smoother. The rebuilding of cartilage and joint greasing are currently optimal", and
5. "After continuous use of Finitro Forte Plus, you may expect the recovery of the cartilage and a life free of pain"
were authorised on the EU Register of Nutrition and Health Claims made on Foods (the "EU Register").
Response
Finitro did not respond to the ASA's enquiries.
Assessment
1, 2, 3, & 4 Upheld
The ASA was concerned by Finitro's lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquiries and we told them to do so in future.
We noted that according to EU Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation), which was reflected in the CAP Code, only health claims listed as authorised on the EU Register of Nutrition and Health Claims made on Foods (the EU Register) were permitted in marketing communications. The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food, or ingredient, and health.
We considered the references in the claims to the rebuilding of cartilage and the resultant reduction in pain were health claims. We noted that we had received no evidence that the health claims were authorised on the EU register and we therefore concluded that the claims breached the Code. Furthermore, we considered that in the context of an ad which referenced arthritis and rheumatism, the claims were also implied claims that the supplement could cure those diseases and such claims were prohibited under the Code.
On all four points the ad breached CAP Code (Edition 12) rules
15.1
15.1
Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Claims must be presented clearly and without exaggeration.
15.1.1
15.1.1
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
15.6.2
15.6.2
Claims that state or imply a food prevents, treats or cures human disease. Reduction-of disease-risk claims are acceptable if authorised by the European Commission
(Food, food supplements and associated health and nutrition claims) and
15.7
15.7
Nutrition and health claims for food supplements must be permitted or authorised as provided for at rule 15.1.1 above. Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim as specified in the EU Register.
(Food Supplements and other Vitamins and Minerals).
Action
The ad must not appear again in its current form. We told Finitro to ensure they did not make unauthorised health claims in future, and not to state or imply that their product could prevent, treat or cure human disease. We referred the matter to CAP's compliance team.
