Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Some marketers have tried to circumvent the Code’s requirements by placing ads that go no further than availability-only, but feature a product or company name that implies weight loss. Our position is that, if an advertiser is unable to substantiate a claim, it is not normally acceptable for the product’s name to imply (either directly or indirectly) that same claim. Even if the ad contains no specific claims, if the ASA believes that readers might infer wrongly that the product can contribute to weight loss, the ASA or CAP will almost certainly ask the marketer to amend their ad.
If the product name is not a registered trade mark, marketers should re-brand their product in a way that does not incorporate an unproven claim. If the product name is a registered trade mark, marketers should include a prominent statement to disclaim the implied claim as well as ensuring that the context of the ad does not create a misleading impression. Past examples include “Fat-magnet”, “Fat-Blocker”, “Fat Attack”, “Fat Trapper”, “Exercise in a Bottle”, “Metabolism” and “Tummy tuck sticks” (Rodial Ltd, 9 March 2011, Tan Express (UK) Ltd, 4 December 2002).
Previously, the ASA concluded that a product name, Fat Stripper, misleadingly implied that the product could help one to lose fat. The disclaimer was considered too small and likely to be overlooked by most readers. The ASA concluded that, even if it had been more prominent, the disclaimer would have contradicted the implied efficacy claim in the name, and because it was not a registered trademark, the ASA instructed the advertiser not to feature the product name in its marketing material again (LA Muscle Ltd, 27 February 2008).
Similarly in 2011, the ASA upheld complaints about an ad which featured three bottles, labelled “shape”, “tone” and “sculpt”, underneath an image of a slim woman. The ASA considered that although the product names were registered trademarks and the ad carried a disclaimer that the names of the products were not intended to imply efficacy, the average consumer would infer from ad as a whole, that the products could shape, tone or sculpt the body, and that the disclaimer was not sufficiently prominent to counteract that impression (bio-synergy Ltd, 30 November 2011).
Claims in food product names
For foods, all product names must comply with the Regulations and Section 15 of the Code. A health claim for a food should only be made if the claim is “authorised” and listed on the EU EU Register of nutrition and health claims (15.1). Similarly, nutrition claims are only permitted if they are listed in the Annex of Regulation (EC) No 1924/2006. Ads must conform with the conditions set out in that Annex
If a product name states or implies a health or nutrition claim, it must be accompanied by a relevant authorised health or nutrition claim. However exceptions may apply. For example, registered trademarks or brand names that existed before 1 January 2005 do not have to comply with this requirement until January 2022. Marketers must seek legal advice for relevant transitional periods (Vitabiotics Ltd, 26 March 2014).
This advice is not limited to products for weight control. See “Claims in product names”