A national press ad for Bach Rescue Night stated "I CAN'T SWITCH OFF…The RESCUE NIGHT range helps your mind switch off, so you can enjoy a natural night's sleep". The top corner of the ad featured a crescent moon and stars on a dark-blue background.
The complainant, a freelance health writer, challenged whether the claims "I can't switch off … Rescue Night range helps your mind switch off, so you can enjoy a natural night's sleep" was an authorised health claim in the EU Register of Nutrition and Health Claims for Foods (the EU Register).
A Nelson & Co Ltd t/a rescueremedy.co.uk (Rescue Remedy) said that the European Food Safety Agency (EFSA) had placed its consideration of health claims for botanicals on hold until they had considered the assessment criteria for such claims. They said that because the requirements for health claims for a food were higher than those for traditional herbal remedies, EFSA were considering permitting the use of traditional evidence to support health claims for botanical products.
Rescue Remedy said they had based the ad on the traditional use of white chestnut Bach Flower Essence and had not made a health claim related to sleep. Rather the ad related to the traditional use of the Bach Flower Remedies, switching the mind off from unwanted, repetitive thoughts. They said EFSA guidance regarding specific aspects of sleep included claims such as the time taken to fall asleep, sleep duration or improvement in sleep quality and that the ad made no mention of any of these aspects. Furthermore, they said they did not consider that the claim to ”switch off the mind” would be considered a specific aspect of sleep and their ad contained no references to any sedative action, that it improved the quality of sleep or was a sleep aid.
The ASA noted that according to EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation), which was reflected in the CAP Code, only health claims which appeared on the list of authorised health claims (the Register) could be made in ads promoting foods, including food supplements. Health claims were defined as those that stated, suggested or implied that a relationship existed between a food category, a food or one of its constituents and health.
We acknowledged Rescue Remedy's assertion that their ad had not made specific claims to aid sleep or that it improved sleep. However, we considered that the use of visuals such as a crescent moon and stars on a dark background, that the letter 'O' in the word "OFF" resembled a simple on/ off light switch image, the text "… you can enjoy a natural night's sleep" and the name of the product "Rescue Night" was likely to give the impression to consumers that it was a product that would aid sleep or that it would help consumers fall asleep easily. We understood that 'unwanted thoughts' was one reason why consumers might find it difficult to get to sleep and, again, considered this added to the impression that the product would contribute positively to sleep. We therefore considered that the ad made a health claim related to sleep involving a food item.
We understood that that some Bach Flower Remedies contained levels of alcohol which would preclude them from bearing health claims altogether, however, we noted that Bach Rescue Night was alcohol free. We acknowledged Rescue Remedy's points regarding EFSA and 'on hold' claims for botanicals. We understood that 'on hold' claims for such botanicals could be used in marketing, 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). However, Rescue Remedy did not provide evidence that relevant proposed claims for white chestnut, or any of the other product ingredients were 'on hold'. Nevertheless, we understood that there were no 'on hold' claims entered onto the Register for white chestnut or the other product ingredients. Furthermore, 'on hold' claims should also be supported with adequate substantiation which we did not receive.
Because the ad made health claims relating to Bach Rescue Night as a sleep aid and we had not seen evidence that relevant claims for the botanical ingredients contained in the product were 'on hold', we concluded that the ad breached 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, food supplements and associated health or nutritional claims).
The ad must not appear again in its current form. We told A Nelson & Co Ltd t/a rescueremedy.co.uk not to make health claims for botanical ingredients if they did not comply with the requirements of the Regulation.