Claims on www.bio-kult.com promoted food supplements. Text on a product page headed "BIO-KULT CANDEA" stated "Bio-Kult Candea contains seven strains of probiotic bacteria along with added garlic and grapefruit seed extract".
Text on another product page headed "BIO-KULT PRO-CYAN" stated, "Bio-Kult Pro-Cyan is a triple action formula scientifically developed with cranberry extract ... two specifically selected probiotic strains and Vitamin A ...". Further text stated "Probiotic formula …".
The complainant challenged whether the claim "probiotic" was an unauthorised health claim.
Probiotics International Ltd understood that there were no authorised health claims for probiotics, but stated the use of the word 'probiotic' was not connected with any health claim. They believed that they had removed any health claims associated with the word “probiotic” and considered the use of the word “probiotic” merely ensured that consumers were being kept informed of the ingredient within the product. They considered that removing the term itself would no longer define the type of ingredient included within the product and would be potentially misleading.
The ASA noted that 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 of Nutrition and Health Claims made on Foods (the EU Register) were permitted in marketing communications.
We noted the advertisers' view that use of the term “probiotic” was not in itself a health claim and that the ad referred, for example, to "probiotic strains", "probiotic bacteria" and the product's "probiotic formula".
We considered the relevant guidance documents from the EC Commission and the Department of Health.
We noted that the EC Commission's guidance stated that a claim was a health claim "if in the naming of the substance or category of substances, there is a description or indication of a functionality or an implied effect on health" and listed "probiotics/prebiotics" as an example and stated "the reference to probiotic/prebiotic implies a health benefit". It added that "claims which refer to an indication of a functionality in the description of a nutrient or a substance (for instance as an adjective to the substance) should also be classified as a health claim" and listed "with prebiotic fibres" or "contains prebiotic fibres" as examples.
We noted that the Department of Health's guidance stated "… claims, such as ‘probiotics and prebiotic fibre’, refer to a function in the body, and are therefore defined as health claims and will need to be authorised via Article 13".
We therefore noted that both documents indicated that a claim that used the term "probiotics" was an example of a health claim, which must be authorised on the EU Register. We considered that use of the term "probiotic" was a specific health claim, because it implied a relationship existed between the substance and health. Therefore, because "probiotic strains", "probiotic bacteria" and "probiotic formula" were not authorised health claims on the EU Register, we concluded that use of the term "probiotic" was in breach of the Code.
The ad breached CAP Code (Edition 12) rules
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.
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
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 supplements and other Vitamins and Minerals).
The claims must not appear again in their current form. We told the advertisers not to use unauthorised health claims such as "probiotic".