On 14 June 2012, the Commission Regulation (EU) No 432/21012 of 16 May 2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children's health, came into force. Unauthorised claims would be subject to a six-month period of grace until 14 December 2012. The complaints below were considered as they appeared in July 2012 under the then current rules on health and nutritional claims for foods.
Summary of Council decision:
Three issues were investigated, all were Upheld.
Claims on the website www.iloveskoosh.com, promoting a frozen yogurt store. A page entitled "Healthy Stuff!" stated "Skoosh pure frozen yogurt is quite simply the most natural healthy way to eat". A second page, entitled "All About Skoosh Frozen yogurt", contained claims which read "Helps aid digestion", "Helps the immune system", "Helps prevent infections", "Lowers cholesterol", "Reduces blood pressure" and "Builds strong bones and teeth".
The complainant challenged whether the following claims were misleading and could be substantiated:
1. "Skoosh pure frozen yogurt is quite simply the most natural healthy way to eat";
2. "Helps aid digestion", "Helps the immune system" and "Builds strong bones and teeth"; and
3. "Reduces blood pressure", "Helps prevent infections", "Lowers cholesterol".
1., 2. & 3. Skoosh did not respond to the ASA's enquiries.
1., 2. & 3. Upheld
The ASA was concerned by Skoosh's lack of substantive response and apparent disregard for the Code, which was a breach of CAP Code clause 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded them of their responsibility to provide a substantive response to our enquiries and told them to do so in future.
We considered that the claims "Reduces blood pressure", "Helps prevent infections" and "Lowers cholesterol" were disease-risk reduction claims. We noted that reduction of disease-risk claims were only acceptable under the CAP Code if they had been authorised by the European Commission. In the absence of evidence from Skoosh that these claims were authorised by the European Commission, we concluded that they were in breach of the Code. We considered that the other health claims in the ad would be acceptable if Skoosh could support them with robust evidence. Because they had not provided this evidence, we concluded that the claims were unsubstantiated and therefore in breach of the Code.
The ad breached CAP Code (Edition 12) rules 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay), 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), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration), and 15.6.2 15.6.2 Claims that state or imply a food prevents, treats or cures human disease. Reduction-of disease-risk claims are acceptable if authorised by the European Commission (Food, food supplements and associated health and nutrition claims).
The ad must not appear again in its current form. We referred the matter to CAP's Compliance team.