Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.Ad description
Two websites for Cambridge Chocolate, seen on 21 February 2019:
a. The first website, www.esthechoc.com/uk, featured a page titled “What is esthechoc?”. Text on the page stated “One small esthechoc a day helps to regain your skin health and slow down the ageing process”. Further text “The world’s first nutricosmetic with a strong scientifically proven impact on the metabolism of ageing skin”. Another page on the website was titled “Skin health by esthechoc”. Text on the page stated “Through a super-addictive combination of two active ingredients (astaxanthin and epicatechins) and unique technology which increases the bioavailability of these substances, esthechoc is proven to have a positive effect on skin metabolism. Through reducing free radicals and increasing tissue oxygenation, esthechoc promotes optimal recovery from any intervention in plastic surgery. As a result of this influence on skin metabolism it is possible to observe a reduction in skin reddening and oedema after treatment and during recovery”.
b. The second website, www.cambridgechocolate.com, featured text on the home page which stated “Cambridge Chocolate Technologies Ltd has been created to help people live healthily and enjoy the anti-ageing protection of the most indulgent form of food - CHOCOLATE”. Text on the “products” page underneath the heading “Esthechoc: Cambridge Beauty Chocolate” stated “… Cambridge Beauty Chocolate is an exquisite functional dark chocolate enriched with powerful extracts derived from algae to protect your skin from aging and contribute to its radiant appearance”. Further text underneath the heading “ReChoc - resveratrol dark chocolate” stated “ReChoc production processes and PolyFount™ fortification technology ensure that all beneficiary polyphenols are preserved and bioavailable for systemic circulation after eating just a single 10g bar! ReChoc has been tested in human studies that confirmed unmatched systemic circulation levels of beneficiary polyphenols that contribute to a daily balanced diet”.Issue
The complainant challenged whether the following claims breached the Code:
1. “One small esthechoc a day helps to regain your skin health and slow down the ageing process”;
2. “promotes optimal recovery from any intervention in plastic surgery. As a result of this influence on skin metabolism it is possible to observe a reduction in skin reddening and oedema after treatment and during recovery”; and
3. “confirmed unmatched systemic circulation levels of beneficiary polyphenols that contribute to a daily balanced diet”.Response
1. & 2. Cambridge Chocolate Technologies Ltd (Cambridge Chocolate) provided a summary document which referenced a number of studies on astaxanthin and epicatechins, two components of Esthecoc that they said had been broadly described in scientific literature to have a beneficial impact on the skin.
3. Cambridge Chocolate used the same document as points 1 and 2, which went on to state that the technology used to extract the relevant components for use in the chocolate had been the subject of a clinical trial which they believed demonstrated its effects on the diet. They said that according to the Cocoa and Chocolate Products Regulations 2003, certain cocoa and chocolate products had to comply with the reserved descriptions and those products had to be made according to defined compositional criteria. As such, they believed that the comparator dark chocolate against which they compared their product was representative of all dark chocolates across the category.Assessment
1. Upheld
According to Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), which was reflected in the CAP Code, only health claims listed as authorised on the EU Register of nutrition and health claims (the EU Register) could be made in ads promoting foods. Health claims were defined as those that stated, suggested or implied a relationship between a food, or ingredient, and health. The ASA considered that claims which stated or implied a beneficial physiological effect on a function of the skin were health claims for the purposes of the Regulation. The claim “One small esthechoc a day helps to regain your skin health and slow down the ageing process” featured on the page beneath text which stated “The world’s first nutricosmetic with a strong, scientifically proven impact on the metabolism of ageing skin”, which also referred to the product’s effect on skin ageing. In light of the reference to metabolism.
We considered that consumers would interpret the claim to mean that the product had a beneficial health effect on a function of the skin. That impression was furthered by the fact that the claim referred to “skin health”. Consequently, we considered the claim implied that the product provided a health benefit to the skin and would therefore be seen as a health claim. The CAP Code stated that specific health claims must be authorised on the EU Register, and general health claims could be made in relation to food only if they were accompanied by a relevant specific authorised health claim. However, the claim was not authorised on the EU Register, nor was it accompanied by a relevant specific authorised health claim and therefore, in those circumstances, the claim breached the Code.
On that point, ad (a) breached CAP Code (Edition 12) rules 15.1, 15.1.1 and 15.2 (Food, food supplements and associated health or nutrition claims).
2. Upheld
Ad (a) was subject to CAP Code rule 15.6.2, which stated that claims that stated or implied that a food prevented, treated or cured human disease were not acceptable in marketing communications for foods or beverages. We considered that the claim “promotes optimal recovery from any intervention in plastic surgery. As a result of this influence on skin metabolism it is possible to observe a reduction in skin reddening and oedema after treatment and during recovery” would be interpreted by consumers to mean that the product could aid the healing process by treating or curing skin reddening and oedema experienced after plastic surgery and during recovery. Therefore, as the claim constituted one that could prevent, treat or cure human disease, we concluded that it breached the Code.
On that point, ad (a) breached CAP Code (Edition 12) rule 15.6.2 (Food, food supplements and associated health or nutrition claims).
3. Upheld According to the Regulation, which was reflected in the CAP Code, only comparative nutrition claims listed in the Annex to the Regulation could be used in ads promoting foods, and the advertiser must ensure that the product met the conditions of use associated with the claim. Additionally, the Code required that comparative nutrition claims must compare the nutrients in the advertised product to a range of foods in the same category which did not have a composition that allowed them to bear a nutrition claim. One product could be used as the sole reference for comparison only if that product was representative of the products in its category. We considered consumers were likely to understand the claim “confirm unmatched systemic circulation levels of beneficiary polyphenols that contribute to a daily balanced diet” to mean that the product had more polyphenols than other foods, and that it therefore had the same meaning as the comparative nutrition claim “increased [name of nutrient]”.
The Annex required that the product about which the claim was being made must meet the conditions of use for a “source of” nutrition claim about the relevant nutrient, and that the increase in the nutrient’s content was at least 30% compared to a similar product. The advertiser had not provided evidence which demonstrated that the advertised product met the conditions of use for a “source of” claim.
Cambridge Chocolate provided a document which stated that the technology in the chocolate was examined for levels of polyphenols in a clinical study, alongside red wine, a dark chocolate and a capsule containing a serum of resveratrol (a polyphenol). The trial only compared one product in the same category as Cambridge Chocolate’s product, and it was not clear from the information provided how that comparator dark chocolate was representative of all dark chocolates across the category. While we noted their comments in respect of the Cocoa and Chocolate Regulations 2003, we considered that it had not been demonstrated that the quantity of polyphenols in the comparator dark chocolate was representative of all dark chocolates across the category. In addition, although the trial demonstrated that the same quantity of food was examined, the difference in quantity of polyphenols was not stated in the ad.
In light of the above, we considered that Cambridge Chocolate was not permitted to make an “increased [name of nutrient]” claim in relation to the product’s polyphenol content. We therefore concluded that the claim “confirmed unmatched systemic circulation levels of beneficiary polyphenols that contribute to a daily balanced diet” breached the Code.
On that point, ad (b) breached CAP Code (Edition 12) rules 15.1, 15.1.1, 15.3, 15.3.1 and 15.3.2 (Food, food supplements and associated health or nutrition claims).Action
Ads (a) and (b) must not appear again in the form complained of.
We told Cambridge Chocolate Technologies Ltd to ensure that claims about the general benefits of their product for overall good skin health were accompanied by a relevant authorised specific health claim and that any specific health claims in the ads were authorised on the EU Register and appropriately worded. We told them to ensure that they did not make claims that their product could prevent, treat or cure human disease.
We also told them that they must not make comparative nutrition claims unless they held evidence which demonstrated their product met the associated conditions of use for such claims, that they only compared foods in the same category and that the difference in quantity of a nutrient was stated in the ad.
CAP Code (Edition 12)
15.1 15.2 15.3 15.1.1 15.3.2 15.6.2 15.3.1
