Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Three tweets from youthenergy seen on 10 May:
a. The first tweet stated, “All our plant ingredients have cell renewal action … because it’s fun to stay young … #YOUTHENERGYDRINK #youth #energy #antiageing”.
b. The second tweet, which @youthenergyHQ had retweeted, stated “For those who drink energy drinks but don’t wish to drink essence of Bulls actual bollocks (Red Bull) Drink @youthenergyHQ instead #Switch”.
c. The third tweet stated “For those is[sic] still drinking redbull … #youthenergydrink #sustain #health #winning #sports #fitness #nobull” accompanied by a composite image of different celebrities laughing.
Issue
The complainant challenged:
1. the claims “All our plant ingredients have cell renewal action … because it’s fun to stay young”, “#energy” and “#antiageing” in ad (a), and “#sustain”, “#health” and “#fitness” in ad (c), which were subject to Regulation (EC) No. 1924/2006 on nutrition and health claims made on food (the Regulation), as reflected in the CAP Code; and
2. whether the claims “For those who drink energy drinks but don’t wish to drink essence of Bulls actual bollocks (Red Bull) Drink @youthenergyHQ instead #Switch” and “For those is[sic] still drinking redbull… #youthenergydrink #sustain #health #winning #sports #fitness #nobull”, and the accompanying images, in ads (b) and (c), denigrated Red Bull.
Response
1. & 2. Vitality 1 Health Care Ltd t/a youthenergy said that they worked with professionals when it came to the development and research of their product. Further, any statements that they made about their products would follow the European Food Safety Authority (EFSA) guidelines. They provided a copy of an EFSA risk assessment and fact sheet on caffeine and explained that caffeine stimulated the central nervous system and in moderate doses increased alertness and reduced sleepiness. They also provided an EFSA Scientific Opinion which assessed evidence relating to the antioxidant activity of a range of substances. youthenergy explained that Mate, artichoke, ginseng and ginko green tea (ingredients in the product) were proven to have antioxidant capacity to levels from 100–6000 units Oxygen Radical Absorbance Capacity, and were related to cell renewal in the human body. They stated that antioxidants in plants were commonly known worldwide for supporting cell regeneration and that they had engaged a UK university to undertake scientific research into the relationship between plant health claims and energy levels.
Further they explained that they had deleted the relevant tweets and that the retweet in ad (b) was written by a member of public who they considered was free to express their opinion. They also stated that they would no longer hashtag certain health words.
Assessment
1. Upheld
According to 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 Register) were permitted in marketing communications for a food. Health claims could be made through the use of images and in the overall presentation of an ad as well as in text. However they were represented, health claims must be presented clearly and without exaggeration.
The ASA considered that consumers would interpret the claims that appeared in ad (a) “All our plant ingredients have cell renewal action … because it’s fun to stay young … #youth #antiageing” to mean that if they drank the product, it would help reduce the effects of ageing by improving cell renewal. We considered consumers would understand that to be a beneficial health effect of consuming the product. We noted youthenergy had not identified any authorised health claim on the EU Register on which those advertising claims were based. We further noted that the EFSA Scientific Opinion provided by the advertiser only considered evidence relating to the potential health benefits of two of the product’s ingredients, apple juice and Yerba Mate, and that the report came to the conclusion that a cause and effect relationship had not been established between the consumption of the food or food constituents and a beneficial physiological effect related to antioxidant activity. We considered the specific health claim relating to cell renewal and anti-ageing was therefore in breach of the Code.
According to the Regulation, which was reflected in the CAP and BCAP Codes, references to general benefits of a nutrient or food for overall good health or health-related well-being were acceptable only if accompanied by a specific authorised health claim. We considered the claim “#energy” in ad (a) and the claims “#health”, “#sustain” and “#fitness” in ad (c) would be understood by consumers as claims that the drink would contribute to general good health and as such must be accompanied by specific authorised health claims. We reviewed the EFSA risk assessment and fact sheet on caffeine but noted that it did not come to a positive conclusion about caffeine and energy levels. Further, we noted that there were no authorised health claims on the Register for caffeine, but there were many unauthorised claims. youthenergy did not identify any authorised health claims in the ads which accompanied the general health claims. We therefore considered the general health claims ‘#energy’, ‘#fitness’, ‘#health’ and ‘#fitness’ were in breach of the Code.
Because the specific health claims in the tweets were not authorised on the Register, and the general health claims were not accompanied by specific authorised health claims, we concluded that the claims “All our plant ingredients have cell renewal action … because it’s fun to stay young … #youth #energy #antiageing”,“#sustain”, “#health” and “#fitness” breached the Code.
On this point, ads (a) and (c) 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.
and
15.2
15.2
References to general benefits of a nutrient or food for overall good health or health-related well-being are acceptable only if accompanied by a specific authorised health claim.
(Food, food supplements and associated health or nutrition claims).
2. Upheld
We noted that the advertiser considered that because ad (b) was written by a member of the public they were not responsible for the tweet. We considered, however, that by retweeting the tweet into their own feed they had adopted it into their own marketing communications and were therefore responsible for its content.
The CAP Code required that marketing communications must not discredit or denigrate another product, marketer or trade name. Both ads (b) and (c) named a competitor product, namely Redbull. Ad (b) included the claim “… don’t wish to drink essence of Bulls actual bollocks (Red Bull)”. We considered that consumers would interpret the claim as meaning that Redbull was made from “bad” ingredients and that they should therefore switch to youthenergy. Ad (c) contained the claims “For those still drinking redbull … #nobull” and was accompanied by a collage of pictures of celebrities laughing which we considered that consumers would interpret as the advertiser mocking consumers who drank Redbull.
We considered that “essence of Bulls actual bollocks”, “#nobull” and the accompanying images would be understood by consumers as a derogatory reference to Redbull. We therefore concluded that ads (b) and (c) denigrated Redbull and therefore were in breach of the Code.
On this point, ads (b) and (c) breached CAP Code (Edition 12) rule 3.42 3.42 Marketing communications must not discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark. (Imitation and denigration).
Action
The ads must not appear again in their current form. We told youthenergy to ensure they did not make general health claims unless they were accompanied by a specific authorised health claim. We also told them not to state or imply that their product or its ingredients could prevent ageing and improve cell renewal, or to make any other specific health claims for the product or its ingredients, unless they were authorised on the Register. We also told them to ensure they did not denigrate their competitors.
