Background
Summary of Council decision:
Four issues were investigated, all of which were Upheld.
Ad description
Claims on the "Juice Menu" page of www.juicegarden.org, an online juice retailer, seen on 1 October 2015, stated "Botanical Green Juices ... ‘SOUP’ER SALAD Apple Celery Tomato Spinach Carrot ... Cancer Deterrent ...". The "Juices & Shakes" page featured 19 different juices and shakes with text stating the ingredients and claimed health benefits for each.
Issue
1. The complainant challenged whether the claim "Cancer Deterrent" on the "Juice menu" page was a claim that the drink prevented human disease, which was prohibited by the CAP Code.
2. The ASA challenged whether the claims "relieves respiratory problems", "cures throat infections" and "reduces fever" for the Sherbet Lemonade drink on the "Juices & Shakes" page were claims that the drinks prevented, treated or cured human disease, which were prohibited by the Code.
The ASA also challenged whether the following claims, which were subject to Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods (the Regulation), as reflected in the CAP Code, complied with the Code:
3. the general health claims, health claims and reduction of disease risk claims for the drinks on the “Juices & Shakes” and “Juice Menu” pages; and
4. the nutrition and comparative nutrition claims on the same pages.
Response
The Juice Garden acknowledged the complaint, but did not provide a substantive response to the ASA's enquiries.
Assessment
The ASA was concerned by The Juice Garden's lack of response and apparent disregard for the Code, which was a breach of the CAP Code (Edition 12) rule 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 respond promptly to our enquiries and told them to do so in future.
1. & 2. Upheld
We considered that the claims “Cancer Deterrent”, “relieves respiratory problems”, “cures throat infections”, “reduces fever” were claims that stated or implied that the drinks prevented, treated or cured human disease, which were prohibited under the Code and were therefore unacceptable.
On these points, the ad breached CAP Code (Edition 12) rule 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).
3. Upheld
The Regulation stated that 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. The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food and drink or ingredient and health. Some flexibility could be exercised in rewording authorised claims, provided that the reworded claim was likely to have the same meaning for consumers as the authorised claim. 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.
The “Juice Menu” and “Juices & Shakes” pages contained a range of claims which stated or implied a relationship between the products, or their constituent ingredients, and health, including those which made references to general benefits for overall good health or health-related well-being: "boost testosterone levels in males"; "cleanse the liver"; "kidney cleanser"; "hydrate the cells flushing out all toxins"; "fights toxins in the body"; "detoxifier"; "colon repair"; "good for the colon"; "digestive aid"; "probiotic"; "aids peristalsis (digestion)"; "enhances digestion, perfect for boosting metabolism levels for the day ahead"; "will aid in releasing water retention"; "Organ Revitaliser"; "Antioxidant repair"; "Free Radical Eliminator"; "oxygen to cells"; "balances pH"; "respiratory aid"; "great for focus and clarity"; "excellent for weight loss"; "weight release"; "Fat Burner"; "Natural Anti-inflammatory"; "immune booster"; "blood regulation"; "increases blood production"; "recovery aid"; "Energiser"; "Eye health"; and "Good for your heart".
We understood that none of those claims were authorised on the EU Register in relation to any drink or ingredient, and considered that none of the claims would have the same meaning to consumers as any authorised claim on the EU Register. Additionally, none of the claims which referenced general benefits of the products or their ingredients for overall good health were accompanied by a specific authorised health claim. We therefore concluded that all the above claims breached the Code.
The ad also included reduction of disease risk claims for the products or their constituent ingredients. Reduction of disease risk claims, which were health claims that stated, suggested or implied that the consumption of a food or one of its constituents significantly reduced a risk factor in the development of human disease, were only acceptable under the CAP Code if they were listed as authorised in the EU Register. We had not seen evidence that the claims “lower high blood pressure”, “lowers blood pressure”, "lowers ... blood sugar levels" and “lowers cholesterol” in the ad were authorised on the EU Register in relation to the products or the referenced ingredients and we therefore concluded that they breached the Code.
We noted that we had seen no evidence that the health claims and reduction of disease risk claims were authorised on the EU Register for the products or any of the constituent ingredients. Furthermore, the general health claims were not accompanied by specific authorised health claims. We therefore concluded that the ad breached the Code.
On this point, the ad breached CAP Code (Edition 12) rules
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.
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.
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).
4. Upheld
The Code defined nutrition claims as those that stated, suggested or implied that a food had particular beneficial nutritional properties due to the energy, nutrients or other substances it contained or did not contain, or contained in reduced or increased proportions. Only nutrition claims listed in the updated Annex of the Regulation could be used in marketing communications, and products or ingredients must comply with the relevant conditions of use for permitted nutrition claims.
The “Juice Menu” and “Juices & Shakes” pages contained nutrition claims that would be understood by consumers as implying that the drinks or their ingredients had particular beneficial nutritional properties, such as "Bromelain Boost"; "Iron Rich"; "Copper rich"; "High in Potassium"; "Vitamin C kick"; "High in ... Vitamin B"; "contains folic acid"; "High in Electrolytes"; “rich in essential fatty acids, omega 3 and omega 6”; "High in fibre"; “amazing source of water soluble fibre”; “high in protein”; "Protein Rich"; "Protein, Protein and more real Protein"; "high in copper, high in fibre ... high in magnesium; and "high in omega-3s".
The ad also contained comparative nutrition claims (those which referred to the nutrients the food contained in reduced or increased proportions compared to other foods), including the claims "More calcium than milk" and "Moringa ... 7 times the vitamin C of oranges, 4 times the Vitamin A of carrots, 4 times the calcium of milk, 3 times the potassium of bananas, 2 times the protein of yoghurt" and "Kale per calorie has more iron than beef and more calcium than milk".
We noted some of the claims implied a nutritional benefit of the drinks or their ingredients, but were not nutrition or comparative nutrition claims listed in the Annex of the Regulation and therefore they were not permitted. For those claims which were listed in the Annex, Juice Garden had not provided any evidence that the products or their ingredients complied with the conditions of use set out in the Annex. We therefore concluded that the claims breached the Code.
On this point, the ad breached CAP Code (Edition 12) rule
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.
15.3
15.3
Comparative nutrition claims must compare the difference in the claimed nutrient to a range of foods of the same category which do not have a composition which allows them to bear a nutrition claim.
15.3.1
15.3.1
A marketing communication may use one product as the sole reference for comparison only if that product is representative of the products in its category.
and
15.3.2
15.3.2
The difference in the quantity of a nutrient or energy value must be stated in the marketing communication and must relate to the same quantity of food.
(Food, food supplements and associated health and nutrition claims).
Action
The ad must not appear again in its current form. We told The Juice Garden not to make claims that foods or drinks could prevent, treat or cure disease. We also told them not to make health claims or reduction of disease risk claims that were not authorised on the EU Register, and not to make claims for general, non-specific health benefits unless those claims were accompanied by a relevant, authorised health claim. We also told them not to use nutrition or comparative nutrition claims which were not listed in the Annex of the Regulation, or which did not comply with the conditions of use associated with permitted nutrition and comparative nutrition claims.
CAP Code (Edition 12)
1.7 15.1 15.1.1 15.2 15.3 15.3.1 15.3.2 15.6.2
