Ad description
An ad for Pharma Nord’s Omega 7 Sea buckthorn oil, that appeared in the Careway pharmacy magazine, included an image of the product pack with text that stated “Contains Omega 3, 6, 7, 9 and Vitamin A (beta-carotene) which maintains normal structure and function of the … female reproductive tract”. Additional text in the main body of the ad stated, “Poor mucous membrane health can result in … Intimate dryness”.
Issue
The complainant challenged whether the claim “maintains normal structure and function of the … female reproductive tract” was an authorised health claim in the EU Register of Nutrition and Health Claims for Foods (the EU Register).
Response
Pharma Nord (UK) Ltd said that the claim “maintains normal structure and function of the … female reproductive tract” was reflected in the European Food Safety Authority’s (EFSA) Journal. They said that in relation to vitamin A, including beta-carotene, the Journal stated “… maintenance of normal vision, skin and mucous membranes, and maintenance of normal hair”. Furthermore, the appendix listed the health relationship for vitamin A and beta-carotene as “Structure and function of the skin and mucous membranes (such as in the lung, intestines, nose, eyes and female reproductive tract)” and the stated condition of use was based on a maximum of 2 mg of vitamin A per day. The recommended dosage in the Omega 7 product provided an intake of 1.6 mg beta-carotene per day.
Assessment
Upheld
The ASA noted that under EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation), which was reflected in the CAP Code, only health claims that appeared on the list of authorised health claims (the EU Register) could be made in ads promoting foods and that marketers must also ensure that they met the conditions of use associated with the claims in question. Health claims were defined as those that stated, suggested or implied a relationship between a food, or ingredient, and health.
We considered the claim "maintains normal structure and function of the … female reproductive tract” to be a health claim that was likely to be interpreted as suggesting a specific health benefit could result from consuming the product. In addition, we considered the claim “omega 7 is known to help maintain the health of mucous membranes throughout the body” was also a health claim. We noted the ad also included wording such as “Poor mucous membrane health can result in … Intimate dryness”, and considered consumers were likely to interpret the ad as a whole to mean that Omega 7 Sea buckthorn oil could alleviate vaginal dryness.
We noted the Register did not include authorisation for the claim “omega 7 is known to help maintain the health of mucous membranes throughout the body”. The ad also stated “Contains Omega 3, 6, 7, 9 and Vitamin A (beta-carotene) which maintains normal structure and function of the skin and mucous membranes, such as in the eyes, nose, mouth and female reproductive tract”, and we considered it was therefore not clear which of the elements of the product the claim was based on. Nevertheless, we noted that the Register did not contain any authorised claims at all for omega 6, 7 or 9, or for omega 3 in relation to mucous membranes. We acknowledged Pharma Nord’s assertion that the claim for vitamin A and beta-carotene was referenced in EFSA’s Journal. However, we understood that EFSA Journal entries could be revised before they were finalised and published in the Register. We noted that the Register did not contain any authorised claims for beta-carotene and the entry for Vitamin A in relation to mucous membranes stated “Vitamin A contributes to the maintenance of normal mucous membranes” and did not reference specific membranes, for example the female reproductive tract, or relief of intimate dryness.
We understood 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. The CAP Code stated that health claims "must be presented clearly and without exaggeration" and those claims should "have the same meaning" as those listed on the Register.
We considered whether the rewording from "Vitamin A contributes to the maintenance of normal mucous membranes" to "maintains normal structure and function of the … female reproductive tract” changed or exaggerated the meaning of the authorised claim. We considered the revised wording, particularly in the context of text such as “Poor mucous membrane health can result in … Intimate dryness", would not have the same meaning for consumers and exaggerated the authorised health claim.
For the reasons given, we concluded the ad breached the 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.
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, food supplements and associated health or nutrition claims).
Action
The ad must not appear again in its current form. We told Pharma Nord (UK) Ltd not to make health claims for foods if they were not listed as authorised in the EU Register; to present authorised health claims without exaggeration; and to ensure such claims had the same meaning for consumers as those on the EU Register, if reworded.
