A poster for Dextro Energy Glucose Tablets, seen on the London Underground network on 17 May 2018, featured the text "LIFE'S HARD" followed by a large upward arrow with "CHEAT!" written inside. Further text stated "FEEL THE BURST - OF FLAVOUR" around a packshot with "DEXTRO ENERGY" in an upward arrow alongside the words "fast" and "direct", which appeared in lines denoting speed, and text which stated "orange + vitamin C". Small text at the bottom of the poster stated "Vitamin C can contribute to the reduction of tiredness and fatigue".
The complainant challenged whether the ad made an implied claim that the product would provide an energy boost, which was a specific health claim which must be authorised on the EU Register of nutrition and health claims made on foods (the Register).
Dextro Energy GmbH & Co KG (Dextro) said they had sought advice from the CAP Copy Advice team in relation to the ad under investigation, to the effect that the ad was likely to comply with the Advertising Code. They said the word “boost” did not appear in the ad, and they did not believe it was a synonym of “burst”. The word “energy” was part of the product name, “Dextro Energy”, which was a registered trademark. Apart from the product name, the text of the ad did not mention energy. The text was made up of three components which they believed would most likely be read as a kind of dialogue: “Life’s hard” ‒ “Cheat!” ‒ “Feel the burst of flavour”. By expressly mentioning “flavour”, which was depicted in the same typeset as the words “Feel the burst” and connected by three dots on either side of the product image, they believed the “burst” would be clearly understood to relate to flavour and not energy.
Dextro said even if the ad was understood to contain an implied health message, that could only be a general, non-specific claim that the food provided a benefit for overall good health or health related well-being. Such references were allowed in accordance with Regulation (EC) No. 1924/2006 on nutrition and health claims (the Regulation) if accompanied by a specific health claim included in the Register. They pointed out that the product contained vitamin C in sufficient quantities to use the authorised health claim “Vitamin C can contribute to the reduction of tiredness and fatigue”, which was included at the bottom of the ad.
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 ASA accepted that, where a product name (in this case, "Dextro Energy") may be construed as a health or nutrition claim, it may be used in advertising if it was trademarked before 1 January 2005 without being accompanied by an authorised health or permitted nutrition claim. Nevertheless, this did not mean that, when that product name was placed in combination with other claims and imagery, it was permissible for the overall message of an ad to constitute a health claim which inaccurately reworded or exaggerated an authorised health claim.
We accepted that the ad referred specifically to “flavour”, but there was no obvious connection between flavour and the statements “Life’s hard” or “Cheat!”. We considered that the most striking aspect of the ad’s presentation was the large yellow arrow which pointed upwards, and which contained the word “Cheat!”. We acknowledged Dextro's view that, if the ad was understood to contain a health message, it could only be a general, non-specific claim. We considered, however, that by inserting the pack shot which prominently featured the product name "DEXTRO ENERGY" into the middle of the sentence that began "FEEL THE BURST", and presenting it alongside the arrow, the ad implied that the product provided an immediate increase in energy levels. Those who consumed the product could, therefore, better face the challenges of day-to-day life. As such, we considered consumers would understand the claim as a specific health claim relating to an immediate increase in energy levels.
We acknowledged that Dextro had consulted the CAP Copy Advice team, whose view was that the specific, authorised health claim for Vitamin C was stated clearly and that it was reasonable for the “Life’s hard” and “Cheat!” claims to be accompanied by it. The ad contained the claim “Vitamin C can contribute to the reduction of tiredness and fatigue”. We considered the claim had the same meaning as the authorised health claim for sources of Vitamin C on the Register, “Vitamin C contributes to the reduction of tiredness and fatigue”. We understood Dextro Energy tablets were a source of vitamin C and considered that, as a specific health claim for a source of Vitamin C listed as authorised on the Register, Dextro were entitled to use it. However, we considered the implications of the ad, as discussed above, were that the product provided an immediate increase in energy levels. We considered that this was a re-wording of the specific health claim and exaggerated the authorised claim. We therefore 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. (Food, food supplements and associated health or nutrition claims).
The ad must not appear again in the form complained of. We told Dextro Energy GmbH & Co KG to ensure they did not exaggerate the wording of specific health claims that were authorised on the Register.