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ASA Ruling on GlaxoSmithKline UK Ltd

GlaxoSmithKline UK Ltd

980 Great West Road
Brentford
TW8 9GS

Date:

8 January 2014

Media:

Television, Poster, Digital outdoor

Sector:

Food and drink

Number of complaints:

63

Agency:

Grey London

Complaint Ref:

A13-220538

Ad

A TV ad and a poster, for Lucozade Sport:

a. The TV ad showed two groups of men running on treadmills, who were being monitored by lab equipment and technicians. Superimposed text stated "LUCOZADE SPORT vs WATER". One group was shown drinking water and the other was shown drinking Lucozade Sport as they ran. The voice-over stated, "At the limits of your ability, you need to replace the electrolytes you lose in sweat, keep your body hydrated, give your body fuel. Lucozade Sport gives you the electrolytes and carbohydrates you need, hydrating you, fuelling you better than water." The water-drinking group were shown dropping out until none remained whilst four of the Lucozade Sport group continued to run and were then seen celebrating. On-screen text at the end of the ad stated "HYDRATES AND FUELS YOU BETTER THAN WATER" next to an image of the product.

b. The poster featured an image of a professional rugby player and stated "HYDRATES AND FUELS YOU BETTER THAN WATER ... SEE CHRIS TAKE THE PERFORMANCE CHALLENGE AT LUCOZADESPORT.COM".

Issue

The Natural Hydration Council and a further 62 complainants challenged whether the claim "hydrates and fuels you better than water" breached the Code.

CAP Code (Edition 12)

BCAP Code

Response

GlaxoSmithKline UK Ltd said Lucozade Sport was a carbohydrate-electrolyte solution and that two health claims for such solutions had been authorised by the EU under Regulation 432/2012, after a scientific assessment undertaken by the European Food Safety Authority (EFSA). They said they felt the claim that Lucozade Sport "hydrates you better than water" was fully consistent with the authorised claim "carbohydrate-electrolyte solutions enhance the absorption of water during physical exercise". They felt the claim that Lucozade Sport "fuels you better than water" was supported by the second authorised claim "contributes to the maintenance of endurance performance during prolonged endurance exercise". They said it had been made clear in a number of official documents, including the Department of Health’s guidance "General principles on flexibility of wording for health claims" that the wordings set out in Regulation 432/2012 did not have to be followed exactly and that some flexibility of wording was possible, provided that its aim was to help consumer understanding. They felt the claim "Hydrates and fuels you better than water" was a consumer-friendly articulation of the two authorised claims and, as a result, was an allowable claim under European Regulation (EC) No 1924/2006 and rules 15.1 and 15.1.1 of the CAP Code. They said both the hydration and endurance performance claims had been approved in respect of carbohydrate-electrolyte drinks used in the context of physical exercise, but that in respect of the endurance performance claim, exercise should be prolonged endurance exercise. They told us they felt they had complied with that requirement in ads that featured the claim "hydrates and fuels you better than water" by setting them in the context of endurance sports such as rugby and long distance running. They further advised that the product formulation met the conditions of use set out in the Annex to the Health Claims Register in relation to carbohydrate-electrolyte solutions.

With regard to the "fuels you better than water" element of the claim they said they strongly believed that consumers would recognise that Lucozade Sport provided calorific energy, derived predominantly from carbohydrate, whereas water was calorie-free and could not therefore be said to "fuel" you at all. They therefore felt that common sense dictated that the claim should be acceptable, because consumers were unlikely to misunderstand it.

In respect of the TV ad, Clearcast said they were satisfied that the treatment and claim complied with the EU Register covering health and nutrition claims, and therefore with the BCAP Code.

Assessment

Upheld

The ASA noted that under EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the "Regulation") only health claims which appeared on the list of authorised health claims (the "EU Register") could be made in ads promoting foods (including drinks) and that marketers must also ensure that they met the conditions of use associated with the claims in question.

We noted that the claim "hydrates and fuels you better than water" did not appear on the list of authorised health claims in respect of carbohydrate-electrolyte drinks, but that GlaxoSmithKline had referred to two authorised claims that did appear on the list and which they felt supported their use of the claim. They said the claim was an amalgamation of the claims "carbohydrate-electrolyte solutions enhance the absorption of water during physical exercise" and "contributes to the maintenance of endurance performance during prolonged endurance exercise". We accepted that the product met the conditions of use associated with those claims.

We understood that the Regulations allowed for a degree of flexibility in the wording used and that claims did not have to be worded exactly as they were on the EU Register, provided that the reworded claim was likely to have the same meaning for consumers as that of an authorised health claim and that the aim of the rewording was to aid consumer understanding, taking into account factors such as linguistic or cultural variations and the target population.

We first considered whether the health claims made in the ads had retained the meaning of the authorised claims that GSK had submitted in support of them. We noted that the definition of the verb "hydrate" was to "cause to absorb water" and we therefore considered that the claim "hydrates … better" was sufficiently similar to the part of the authorised claim which stated "enhances the absorption of water" and that consumers would still understand the meaning of that aspect of the claim. However, we considered that rewording the part of the authorised claim which stated "contributes to the maintenance of ... performance" so that it simply read "fuels" meant that consumers were less likely to understand correctly the meaning of that part of the authorised claim.

We acknowledged GlaxoSmithKline's argument that it was "common sense" that Lucozade Sport would "fuel" consumers better than water, because it contained calories when water did not. However, we understood that only health claims which appeared on the EU Register could be made in ads promoting foods and drinks, therefore, we considered that their argument was not acceptable.

We noted that the authorised claim GlaxoSmithKline had submitted to us in support of the "hydrates" element of the claim included a reference to "physical exercise" and the authorised claim submitted by them in support of the "fuels" element of the claim, included a reference to "prolonged endurance exercise". We noted that GlaxoSmithKline had aimed to set any ads that used the claim "hydrates and fuels you better than water" in the context of prolonged endurance exercise, which was the higher standard; for example, by showing athletes running until exhaustion in the TV ad and by featuring a professional rugby player on the poster.

We noted that the reworded claim did not make any reference to prolonged endurance exercise, but rather that GlaxoSmithKline had aimed to include that element of the claim implicitly, through the ads' settings. We acknowledged that the TV ad was clearly set in the context of prolonged endurance exercise, with the voice-over making reference to exercising “at the limits of your ability” and the inclusion of camera shots of clocks to show that the exercise had continued for a long period of time. We considered that this was an acceptable alternative to including an explicit reference to prolonged endurance exercise within the reworded claim itself. In relation to the poster ad, we considered that the attempt to link the claim to prolonged endurance exercise was less evident. We noted that sports and the use of sports personalities were fairly common themes in ad campaigns for various products and, as such, we did not consider that the average consumer would necessarily infer that the claimed health benefits would only be achieved during prolonged endurance exercise.

We noted that GlaxoSmithKline had made reference to the product being "... better than water". Whilst we noted that the Regulation did not place any specific restriction on the use of comparative health claims, we considered that, to be acceptable, any such comparative health claims would themselves have had to be authorised. With regard to the authorised claim "carbohydrate-electrolyte solutions enhance the absorption of water during physical exercise" we considered that this claim implicitly contained a comparison with plain water and that therefore it might have been acceptable for GlaxoSmithKline to state that the product “hydrates ... better than water”. However, even if we had accepted that “fuels” was an acceptable rewording of the authorised claim "contributes to the maintenance of endurance performance during prolonged endurance exercise", we noted that that claim did not make any comparison with water, and we therefore considered that it would not have been acceptable for GlaxoSmithKline to state that the product “fuels ... better than water”.

Additionally, 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 claims described the particular health relationship that EFSA said had been substantiated by scientific evidence, but that both ads referred to "Lucozade Sport" rather than to "carbohydrate-electrolyte solutions". However, we acknowledged that the TV ad included a voice-over that stated "Lucozade gives you the electrolytes and carbohydrates you need, hydrating you, fuelling you better than water" and we therefore considered that the relationship between the food and the health benefit had been made sufficiently clear. Although the poster ad made the same claim, it did not provide any explanation of how Lucozade Sport provided that benefit, and we considered that consumers would not necessarily understand that the claimed health benefit was as a result of the product being a carbohydrate-electrolyte solution, we concluded that ad (b) breached the Code on that point.

Ad (a) breached BCAP Code rules 13.4 and 13.4.2 (Food, food supplements and associated health or nutritional claims).

Ad (b) breached CAP Code (Edition 12) rules 15.1 and 15.1.1 (Food, food supplements and associated health or nutritional claims).

Action

The ads must not appear again in their current form. We told GlaxoSmithKline to ensure that they retained the meaning of any authorised health claims if they reworded them to aid consumer understanding; and to avoid substituting product names for the nutrient, substance, food, or food category, for which a claim had been authorised.

How to comply with the rules

For advice and training on the Advertising Codes please visit the CAP website.

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