Ad description
A poster for Nourkrin, seen on a London Underground platform, included direct and implied references to hair thinning and treatment for it. The ad also showed a pack shot of the product, on which text stated "Nourkrin - WOMAN - Nourishes the hair and supports the normal Hair Growth Cycle - FOR HAIR GROWTH ... The Original Hair Growth Supplement with Marilex (R) and Biotin".
Issue
A complainant challenged the ad, which included the claim "scientifically proven" and which featured "before and after" photographs of a woman who had used Nourkrin, and included health claims that are required to be authorised on the EU Register.
Response
Pharma Medico Ltd said the EU Register contained the authorised claim "Biotin contributes to the maintenance of normal hair" and that Nourkrin Woman contained the requisite amount of biotin to meet the condition of use. They said flexibility of wording was permitted as long as the adapted wording had the same meaning for the consumer as the authorised claim in the EU Register. Pharma Medico said the ad stated "supports the normal Hair Growth Cycle: For hair growth" and "The original hair growth supplement", which they believed was consistent with the authorised wording on the basis that "normal" hair would grow. They believed the before and after photographs that appeared in the ad of the woman who had used Nourkrin Woman were also consistent with the authorised wording. Pharma Medico noted the conclusion of the European Food Safety Authority (EFSA) Panel that there was no evidence that the intake of Biotin was inadequate in the general EU population, but said that the fact that the general population was not deficient in Biotin should not be a bar to communicating to groups who were at risk of being deficient. In addition to their own research development and clinical study in relation to Nourkrin Woman, they pointed out that the EFSA had itself evaluated the scientific data for biotin. Pharma Medico believed the claim "scientifically proven" was justified on that basis.
Pharma Medico said that the product also contained horsetail extract (Equisetum arvense), a botanical ingredient for which claims relating to hair growth and hair strengthening were "on hold" and which they therefore believed could be used, as long as they were substantiated.
Pharma Medico said they had no plans to use the ad in its current form again.
Assessment
Upheld
According to EU Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation), which was reflected in the CAP Code, only health claims listed as authorised on the EU Register were permitted in marketing communications. 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 EU Register contained the authorised claim "Biotin contributes to the maintenance of normal hair", in relation to the general population, for foods, including food supplements, which contained the requisite amount of biotin to meet the condition of use. We understood that Nourkrin Woman contained the requisite amount of biotin. The ASA noted Pharma Medico's view that, because "normal" hair would grow when using the product, the meaning of the claim had not been materially altered from the one that was authorised, and their belief that the ad did not make a claim that went beyond maintenance of normal hair. However, we considered text that read "FEMALE HAIR THINNING - 'YOU ARE NOT ALONE' - 46% of women suffer in silence not knowing where to turn for help. PATRICIA TURNED TO NOURKRIN" and "Available in the hair loss section ..."; the text on the pack shot that stated "20 YEARS RESTORING CONFIDENCE IN HAIR"; "FOR HAIR GROWTH"; "The original Hair Growth Supplement ..."; "... supports the normal Hair Growth Cycle"; and the before and after photographs which showed a woman with apparently thicker hair after using Nourkrin were, in the context of the ad, health claims, or implied health claims, that Nourkrin could increase hair growth in women who experienced thinning hair. We considered that, in the context of the ad, the text "... scientifically proven" suggested that it was scientifically proven that the product could increase hair growth in women who experienced thinning hair. We were concerned, therefore, that the implied claim in the ad that Nourkrin helped to increase hair growth in women who experienced thinning hair went beyond the authorised health claim and suggested that Nourkrin would help to reverse the issue of hair that was thinning rather than only contributing to the maintenance of normal hair growth.
According to the Regulation, 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 that, in the specific context of the implied claims made for a food in the ad, "nourishes the hair" was a general health claim. We noted that we had not seen evidence that the related health claims that were in the ad, that Nourkrin helped to increase hair growth in women who experienced thinning hair, were authorised on the Register.
Furthermore, we noted that health claims could be made only for the nutrient, substance, food or food category for which they had been authorised and not for the product itself. Although text in the pack shot shown in the ad stated "The original Hair Growth Supplement with Marilex and Biotin", that text did not explain that the health claims related to Biotin. We also noted that the references to Nourkrin in the larger text in the main body of the ad "PATRICIA TURNED TO NOURKRIN", the text "Nourkrin WOMAN - Nourishes the hair and supports the normal hair Growth Cycle" in the pack shot and the text "Patricia before Nourkrin" and "Patricia after Nourkrin", below the before and after photographs respectively, were more prominent. Given the prominence of the claims and text that made no reference to the ingredient in comparison with the text that referred to Biotin, we also considered the relationship between the product and the health benefit had not been made sufficiently clear.
We understood that specific health claims that were "on hold" for botanical ingredients could be used, provided such use had the same meaning as the proposed claim and they were used in compliance with applicable existing national provisions (in this case the CAP Code). We considered the health claims in the ad, that Nourkrin Woman helped to increase hair growth in women who experienced thinning hair, were more in line with the "on hold" claims for horsetail extract (Equisetum arvense) − "For skin health - improves skin, hair and nail condition, promotes hair growth and strengthening ..." − than the claim approved for biotin. However, there were no references in the ad to horsetail extract and so the claims for hair growth wouldn't be understood to relate to that ingredient. We therefore did not look at the substantiation for the claims.
For the reasons given, we concluded that the ad therefore breached the Code.
The ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation),
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 and nutrition claims) 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 supplements and other vitamins and minerals).
Action
The ad must not appear again in its current form. We welcomed Pharma Medico Ltd's assurance that they did not intend to use the ad in its current form again. We told Pharma Medico Ltd to ensure that future ads did not exaggerate authorised health claims and to ensure that health claims were clearly attributed to the relevant substance.
