Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A poster for Bio-tiful Dairy’s Kefir drink, seen on the London Underground network in May 2017, included text which stated “BIOTIFUL DAIRY’S 2000 YEAR OLD SECRET TO BETTER DIGESTION … Long ago, the people of the Caucasus Mountains discovered a miracle drink that naturally boosted digestion and immunity. They called it Kefir which means ‘long life’. They loved it so much that they kept it secret for 2000 years. Then we came along. You’re welcome.”
1. The complainant challenged the “long-life” claim, which was subject to Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods (the Regulation), as reflected in the CAP Code.
2. The ASA challenged the claims “secret to better digestion” and “naturally boosted digestion and immunity”, which were subject to the Regulation, as reflected in the CAP Code.
1. Bio-tiful Dairy Ltd t/a Bio-tiful Dairy said “Long life” was not a health claim; the ad simply stated that the word ‘Kefir’ meant ‘Long Life’ (in old Turkish, from the Turkish work “keif”). They said the ad did not state that Kefir specifically made you live longer.
2. They said their product was a natural source of vitamin B2 (it contained 383 mcg per 250 g portion which was 27% of the nutrient reference value (NRV)), vitamin B12 (it contained 0.63 mcg per 250 g portion which was 25% of NRV) and that it contained live yoghurt culture. They said the claims in the ad were based on the health claims “Riboflavin (Vitamin B2) contributes to normal energy-yielding metabolism”, “improves lactose digestion” and “Vitamin B12 contributes to normal function of the immune system”, which were authorised on the EU Register of nutrition and health claims made on foods (the EU Register).
According to the Regulation, which was reflected in the CAP Code, only health claims listed as authorised on the EU Register were permitted in marketing communications. Health claims could be made through the use of images and in the overall presentation of an ad as well as in text. However they were represented, health claims must be presented clearly and without exaggeration.
The Code also required that references to general benefits of a nutrient or food for overall good health or health related well-being were acceptable only if they were accompanied by a specific authorised health claim.
The ASA considered that consumers would understand the claims “Secret to better digestion”, “Naturally boosted digestion” and “Naturally boosted immunity” to mean that the product would improve the functioning of their digestive and immune systems. As such, we considered that the claims were health claims for the purposes of the CAP Code.
We noted the advertiser’s view that the claims in the ad were based on the specific authorised health claims “contributes to normal function of metabolism”, “improves lactose digestion” and “normal function of the immune system”.
We noted that the claim “improves lactose digestion” was not authorised on the Register, although there were two authorised claims - one relating to lactase enzyme, and one relating to live yoghurt cultures - which stated that those substances improved lactose digestion “in individuals who have difficulty digesting lactose”. We acknowledged the claim “Riboflavin (Vitamin B2) contributes to normal energy-yielding metabolism” and “Vitamin B12 contributes to the normal function of the immune system” were authorised on the Register as suggested by the advertiser.
While we noted there were authorised claims on the Register which were similar to those identified by the advertiser, we considered that the claims “secret to better digestion” and “naturally boosted digestion and immunity” did not accurately reflect the meaning of those specific authorised health claims. The claims in the ad attributed the health benefits to the advertiser’s product rather than to the substances that the authorised health claims related to. We also noted that the claims for vitamins B2 and B12 related to the “normal” functioning of the body, whereas the claims in the ad implied that the product could improve digestion and immune function. Furthermore, the ad referred to the product’s ability to improve “digestion” generally rather than specifically to “lactose digestion” in those who “have difficulty digesting lactose” as stated in the authorised claims for lactase enzyme and live yoghurt cultures. The advertiser had also not provided evidence which demonstrated that their product met the conditions of use associated with any of the authorised health claims.
Because the specific health claims made in the ad were not authorised on the EU Register and the general health claim in the ad was not accompanied by a specific authorised claim, we concluded that the ad breached the Code.
We also considered that, in the context of the ad and particularly the surrounding health claims, consumers would understand “long life” to mean the product had general benefits for overall good health and health-related wellbeing, regardless of whether the claim that ‘kefir’ meant ‘long life’ was factually accurate or not. That claim should therefore have been accompanied by a specific authorised health claim.
The ad breached CAP Code (Edition 12) rule
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 15.2 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. (Food, food supplements and associated health and nutrition claims).
The ad must not appear again in its current form. We told Bio-tiful Dairy Ltd to ensure they did not make specific health claims unless they were authorised on the EU Register, and not to make general health claims unless they were accompanied by a specific authorised health claim.