A web page headed "Slimming Aids & Weight Loss", seen on www.amazon.co.uk in December 2017, featured a number of food supplement products.
The ASA challenged whether the product category heading "slimming aids & weight loss" was a health claim that was authorised on the EU Register for each product listed in the category.
Amazon Europe Core Sarl said that category headings could operate as signposts allowing customers to navigate through the website. However, their data showed that customers used search and other features to navigate to the detail page for a particular product and make purchase decisions at a product level. Amazon said that their category headings did not represent product information and were not directly connected with the supply or transfer of goods. They considered that category headings on the website were equivalent to in-store point of sale material which was not subject to the CAP Code, and it was therefore inconsistent for them to fall under the remit of the CAP Code.
Amazon did not comment on the substance of the complaint.
The ASA sought the views of four industry bodies: the Council for Responsible Nutrition UK (CRN UK), the European Specialist Sports Nutrition Alliance (ESSNA), the Health Food Manufacturers’ Association (HFMA), and the Proprietary Association of Great Britain (PAGB).
CRN UK stated that category headings acted as a form of signposting, helping consumers find the particular product they were seeking. Such signposting could feature product sectors other than food supplements, such as other types of food products, medicinal products and/or medical devices. Removing these signposts could be misleading and confusing for consumers, as they would not know where to find what they were looking for. They said that, to some extent, a lack of signposting could potentially lead to consumer harm, if they inadvertently selected the wrong type of product for their requirements.
ESSNA stated that product categories were needed as an orientation tool for consumers, to enable them to explore individual items in more detail. They did not believe that statements about weight loss and slimming, in a category heading, made a claim about the function of products within the category. They said that appropriate and accurate information on the products within the different categories was available on individual product pages.
The HFMA stated that category headings acted as signposts for consumers, and did not promote the supply of identifiable goods. They believed that categories referring to slimming and weight loss were necessary in order to provide consumers with a breadth of relevant choices of competing and complementary products. Accurate information, in the case of food supplements, was available at individual product level through mandatory and regulated food information.
The PAGB stated that while there were circumstances where a category heading could be interpreted as a claim, often it functioned as a straightforward navigational tool, and that would be dependent on context. They noted that the heading “weight loss” could cover products including books, sporting wear and other wellbeing products intended to support weight loss, and in that context the heading could be considered a simple sign post.
The ASA considered that a statement about weight loss, presented in a category heading, would be understood as a claim about the function of the products contained within that category, which was likely to influence a consumer’s decision to purchase those products. We considered that consumers would understand food supplements placed in the “weight loss” category to have the inherent function of helping them to lose weight, as opposed to products that would enable the user to undertake other activities that would help them lose weight (for example, fitness clothing and equipment). Medical devices and medicines included in such a category would need to be assessed under the relevant rules for each product type.
The Introduction to the CAP Code stated that it covered “advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites … that are directly connected with the supply or transfer of goods”. We noted that the category heading “Slimming Aids & Weight Loss” appeared on the Amazon’s own website and made claims about the function of the products contained within the category that we considered were likely to have an impact on a consumer’s decision to purchase those products. We considered that the claim fell within the remit of the CAP Code.
According to Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), only health claims listed as authorised on the EU Register were permitted in marketing communications for foods, including food supplements. Health claims were defined as those which stated, suggested or implied a relationship between a food, or ingredient and health. We considered that consumers would understand the claim “Slimming Aids & Weight Loss” to imply a relationship between the food supplements in the category and a benefit to health; specifically that the supplements could aid or cause slimming/weight loss. Therefore we expected to see evidence that all of the food supplements within the category met the conditions of use to carry a health claim that was authorised on the EU Register and that would be understood by consumers as equivalent in meaning to “Slimming Aids & Weight Loss”. Because Amazon had not provided any evidence that was the case, we concluded that the claim was misleading.
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 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. 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 nutrition claims).
The ad must not appear again in the form complained about. We told Amazon Europe Core Sarl to ensure that they did not place food supplements in the “Slimming Aids & Weight Loss” category unless they held evidence that those products were capable of carrying an equivalent health claim that was authorised on the EU Register.