Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
The website www.nakedjuice.co.uk was headed "NAKED RANGE We're all natural with a pound of the best bare-naked fruits in every 454g bottle, with no added sugar or preservatives - ever". Text under the sub-heading "ANTIOXIDANT FAMILY" stated "Juice Smoothies loaded with nature's elite fighting force to defend your body against free radicals (those nasty little molecules that attack your cells and could have an impact on your overall health)". Underneath, two product names, "Green Machine" and "Mango Machine", linked to further information. The two product names were also linked under the heading "ANTIOXIDANT" in a sidebar at the left-hand side of the web page.
Issue
The complainant challenged whether the following claims were authorised on the EU Register of Nutrition and Health Claims for Foods (the EU Register):
1. "ANTIOXIDANT"; and
2. "ANTIOXIDANT FAMILY Juice Smoothies loaded with nature's elite fighting force to defend your body against free radicals (those nasty little molecules that attack your cells and could have an impact on your overall health)".
Response
1. & 2. PepsiCo International Ltd t/a Naked Juice said that when EU Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation) was announced, the EC Commission issued guidance which made clear that claims that a foodstuff "contain[ed] antioxidants" was a health claim. In addition, guidance subsequently published by the UK's Department of Health said that claims such as "contains antioxidants", which referred to the role of a nutrient in the function of the body, were defined as health claims and as such must be authorised on the EU Register. Naked Juice considered that neither of those guidance documents made it clear whether, under the Regulation, the term "antioxidant" was a specific health claim or a non-specific, general health claim (defined by the Regulation as a reference to a general, non-specific benefit of a nutrient or food for overall health). Naked Juice considered that, in the absence of direct guidance, the term "antioxidant" was a non-specific, general health claim, and it was therefore permissible to use it, provided it was accompanied by a specific health claim which was authorised on the EU Register.
Naked Juice explained that, in accordance with the requirements of the Regulation, the 'Green Machine' and 'Mango Machine' products both contained Vitamin C in amounts high enough to allow claims that the product contained Vitamin C, along with any associated authorised health claims for Vitamin C.
Naked Juice said various claims relating to the antioxidant activity of Vitamin C had been considered by the body which authorised health claims, the European Food Safety Authority (EFSA), including: "protection of body cells from oxidative damage"; "antioxidant activity/antioxidant"; "antioxidants and ageing"; "cell protection from free radical damage"; and "antioxidant properties". Naked Juice highlighted that EFSA's published Scientific Opinion stated that they considered that the "protection of DNA, proteins and lipids from oxidative damage [was] beneficial to human health" and that they concluded that "a cause and effect relationship [had] been established between the dietary intake of vitamin C and the protection of DNA, proteins and lipids from oxidative damage". EFSA had concluded there was evidence to support the claim "Vitamin C contributes to the protection of cells from oxidative stress", and as a result that health claim was then authorised on the EU Register. The other claims proposed by advertisers and considered by EFSA were not authorised.
Naked Juice said the Regulation allowed for flexibility in the wording of authorised health claims, and that Department of Health guidance on 'General principles on flexibility of wording for health claims' stated that the adapted wording must mean the same to the consumer as the authorised claim in the EU Register. The guidance cited various examples of 'flexed' wording of authorised health claims which would not be acceptable; Naked Juice highlighted one example, in which the authorised health claim "Vitamin C contributes to the protection of cells from oxidative stress" was replaced with the wording "antioxidant vitamins and minerals act against age-accelerating free radicals". Naked Juice said in that case EFSA had concluded there was not evidence to support a claim regarding ageing, but they nevertheless considered that that demonstrated there could be flexibility in the wording of authorised claims.
Naked Juice said EFSA used the term "antioxidant" several times when discussing the effect of Vitamin C, and the authorised claim moved from using that term to a more specific description of oxidative action. They said the use of the word "antioxidant" was essential as it was well-known in the UK market and one with which consumers were familiar. In Naked Juice's opinion, the average consumer would understand the term "antioxidant" to give a benefit such as the "... protection of cells against oxidative stress", and therefore the terms were synonymous to consumers. They also considered the term "antioxidant" helped consumers to understand the exact wording of the approved claim, which they considered to be highly technical industry language. In their opinion the term "antioxidant" was more easily understood by consumers, and there was therefore no danger of consumers being misled.
Assessment
1. & 2. Upheld
The ASA noted that according to the Regulation, which was reflected in the CAP Code, only health claims listed as authorised on the EU Register were permitted in marketing communications. CAP Code rule 15.2 allowed references to general, non-specific health benefits to be made, but only if those claims were accompanied by a specific, authorised health claim.
We noted Naked Juice's view that the guidance documents from the EC Commission and the Department of Health did not make clear whether the term "antioxidant" would be defined as a health claim or, alternatively, as a general, non-specific health claim. We considered both documents were unequivocal in setting out that a claim that a food contained antioxidants was an example of a health claim which must be authorised on the EU Register. The EC Commission's guidance stated that a claim was a health claim "if in the naming of the substance or category of substances, there is a description or indication of a functionality or an implied effect on health" and listed "contains antioxidants" as an example. In addition, the Department of Health's guidance stated "Claims such as 'contains antioxidants' ... are defined as health claims and will need to be authorised via Article 13". Article 13 of the Regulation related to health claims, and not to general, non-specific health claims. Notwithstanding that, we considered that even if the EC Commission or the Department of Health (or another relevant body) had not issued direct guidance about whether a particular claim was a health claim or a general, non-specific health claim, it did not follow that the claim must be a general, non-specific health claim; rather, each claim must be considered on its own merits.
We considered that the claims "ANTIOXIDANT" and "ANTIOXIDANT FAMILY" were not references to a general, non-specific benefit of the product for overall health, but were specific health claims, because the term "antioxidant" referred to the function of a substance on the body. We considered that the claim "Juice Smoothies loaded with nature's elite fighting force to defend your body against free radicals (those nasty little molecules that attack your cells and could have an impact on your overall health)" was also a specific health claim, for the same reason.
We noted that the two Naked Juice products 'Green Machine' and 'Mango Machine' contained quantities of Vitamin C high enough for the products to bear authorised health claims relating to Vitamin C, including the claim "Vitamin C contributes to the protection of cells from oxidative stress" ("the authorised claim"), which did not appear in the ad. We noted that marketers could exercise some flexibility in rewording authorised claims, provided that the reworded claim was likely to have the same meaning for consumers as the authorised health claim and the aim of the rewording was to aid consumer understanding, and taking into account factors such as linguistic or cultural variations and the target population.
We acknowledged that the EFSA opinion in which the authorised claim was approved used the term "antioxidant" a number of times. However, we noted that the Department of Health guidance to which Naked Juice had referred warned against picking sentences or phrases from an EFSA opinion when adapting the wording of an authorised claim, because it could increase the risk of changing the meaning of the claim. We considered that the use of the term "antioxidant" in EFSA's opinion did not equate to approval of the term as a rewording of the authorised health claim. Furthermore, we noted that although the EFSA opinion listed various claims that had been considered in relation to the effects of Vitamin C, including the claims "antioxidant activity/antioxidant" and "antioxidant properties", EFSA had concluded that the wording justified by the evidence was "Vitamin C contributes to the protection of cells from oxidative stress"; they had rejected all claims which used the term "antioxidant". We considered the claim "ANTIOXIDANT", in the context of the ad, did not convey the full meaning of the authorised health claim to consumers, and we therefore concluded the ad breached the Code in that regard.
Notwithstanding the above, we noted that the CAP Code, which reflected the requirements of the Regulation, stated that health claims must be presented clearly and without exaggeration. We noted the Department of Health’s guidance referenced by Naked Juice also warned that when adapting the wording of an authorised claim, advertisers should take care not to make the claim 'stronger' than the authorised claim. The ad included the claim "ANTIOXIDANT FAMILY Juice Smoothies loaded with nature's elite fighting force to defend your body against free radicals (those nasty little molecules that attack your cells and could have an impact on your overall health)". We considered that wording, and in particular the wording "defend your body against free radicals", implied complete protection for the body against free radicals. We concluded that that wording exaggerated the authorised health claim and therefore breached the Code in that regard.
In addition, we noted that health claims could only be made for the nutrient, substance, food, or food category for which they had been authorised, and not for the product itself, because the authorised claim described the particular health relationship that EFSA said had been substantiated by scientific evidence. We noted that neither claim included any reference to Vitamin C as the nutrient which conferred the health benefit referenced in the authorised claim. We therefore concluded that the claims also breached the Code in that regard.
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.
and
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.
(Food, food supplements and associated health or nutrition claims).
Action
The ad must not appear again in its current form. We told Naked Juice to ensure that they retained the meaning of, and did not exaggerate, any authorised health claims if they reworded them to aid consumer understanding, and to include the name of the nutrient, substance, food, or food category for which a claim had been authorised.
