The ad under investigation appeared in May 2021, and we therefore assessed it under the Code interpreted in the light of changes in the background law resulting from the UK’s exit from the EU, as per CAP/BCAP’s statement on EU exit dated 22 December 2020.
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
A 48-minute teleshopping presentation for ProLife CBD Oils, seen on the Gemporia television channel on 22 May 2021, featured a presenter from Gemporia and one of the co-founders from ProLife CBD. Throughout the ad they made a number of claims about the health benefits of the products and referenced that the products were registered with the Food Standards Agency (FSA).
During the presentation two slides appeared on-screen. The first was titled “Studies show that CBD oil helps with” and listed the conditions “General well-being, Acne, ADD/ADHD, Addiction, AIDS, ALS, Alzheimer’s [sic], Anorexia, Antibiotic resistance, Anxiety, Asthma, Atherosclerosis, Arthritis, Autism, Bipolar, Cancer, Colitis / Chrons [sic], Depression, Diabetes, Endocrine disorders, Epilepsy / seizure, Fibromyalgia, Glaucoma, Heart disease, Huntingdon’s [sic], Inflammation, Irritable bowel [sic], Kidney disease, Liver disease, Mad cow disease / Prion, Metabolic Syndrome, Migraine, Mood disorders, Motion sickness, Multiple Sclerosis, Nausea, Neuropathic pain, Obesity, OCD, Osteoporosis, Parkinsons [sic], PTSD, Rheumatism, Skin conditions, Sleep disorders, Spinal cord injury, Stress, Stroke / TBI, Schizophrenia, Sickle cell animia [sic]”. While the slide was on-screen the presenters picked out some of the conditions that were in the list and also said it “… helps your immune system”. The second slide was titled “Conditions that can be helped by CBD National Institute of Health …” and listed the conditions “Pain, Epilepsy, Multiple Sclerosis (MS), Amyotrophic Lateral Sclerosis (ALS), Parkinson’s [sic], Inflammation, Acne, Dyskinesia, Psoriasis, Broken Bones, Mad Cow Disease, Depression, Bacterial Infections, Diabetes, Rheumatoid Arthritis, Nausea, Anxiety, ADHD, Schizophrenia, Substance Abuse/Withdrawal, Heart Disease, Irritable Bowel Syndrome (IBS)” and also stated “keep in mind that this CBD benefits chart is not a full list, and we are only beginning to discover how cannabinoids can help and heal”.
Throughout the presentation the presenters made claims, including from testimonials about the benefits of CBD oil, including “… the reason why this was made in the first place is because Cherry, Toby, Debs wanted to make sure that what the CBD oil that they were giving to Toby to get him out of the pain and to get him out of nauseousness for chemo …”, “… helps me with my spinal osteoarthritis, anxiety, depression …”, “… ask me anything and I bet you there will be something it has helped with. Go from anxiety, depression, stress, fibromyalgia, eczema, anything to do with the skin, Parkinson’s [sic], epilepsy, diabetes, cancer”, “… the joint pain people have talked about, migraines, tension, anxiety, depression and this is the starter bottle”, and “… it helped with my cancer side effects and my migraines”.
Throughout the presentation the presenters discussed the requirement for CBD products to be FSA registered and that the advertised products were FSA registered, including “… the reason this was made in the first place was because … they wanted to make sure it was pure, was the best ingredients and ticked all the boxes. They went to get that ‘certificate’ if you like, to make sure that everything they’ve got is here. Now actually, the world of CBD has taken a massive overhaul because governing bodies have come in and gone, … they want everybody to tick all the right boxes and be up to standards”, “… yes, so it is the Novel Foods Act, and you have to be FSA registered now”, “… you’ve got here the certificate of analysis and stability reporting testing … this is what everybody needs to have”, “… it’s always been standardised to the very best, but only just recently … the whole of the world of CBD now has to reach that standard … this has been made to that standard from the get go”, “… people that are not up to standard will not be on the market”, “… what they are saying is anyone who has submitted their application before the deadline, they are allowing them to continue because they’ve spent the money and put the effort in, and you would hope that if they’ve done that then they are confident”, “… we know that it’s the best standard it can be … we know that it’s the best on the market, but this is the most incredible, incredible standard”, “… all this UK regulation has just happened, a lot of companies now cannot even bring you CBD because it does not qualify in terms of quality. We have always had the quality, we have not had to change a thing” and “… that certificate of good quality and all the tick boxes has always been there”.
Two complainants challenged whether the claims that:
1. ProLife CBD Oil was effective for treating or helping with the conditions and illnesses referenced in the ad stated or implied that a food prevented, treated or cured human disease; and
2. CBD oil “helps with: General well-being” and “helps your immune system” were health claims that complied with the Code.
3. The ASA challenged whether the presentation misleadingly implied that ProLife CBD Oils were approved by the Food Standards Agency.
1. & 2. Gemporia Ltd said they were not able to substantiate the claims or demonstrate that they were authorised claims in the Great Britain nutrition and health claims (NHC) Register (the NHC Register).
3. Gemporia said they had understood that because a Novel Foods application had been submitted to the FSA, the products were allowed to be marketed and any references made in relation to this were based on that assumption, but that they had misunderstood the context.
They acknowledged that they had breached the Code on all issues and said their future advertising would adhere to the Code.
The ASA considered that consumers would understand from the presentation that ProLife CBD oils could treat or help with all the conditions that were mentioned, including those that appeared on the two presentation slides, in the testimonials and those mentioned by the presenters. We concluded the claims implied the product, a food, prevented, treated or cured human disease, which was prohibited under the Code.
On that point, the ad breached BCAP Code rules 13.6 13.6 These are not acceptable in advertisements for products subject to this section: and 13.6.2 13.6.2 Claims that state or imply a food prevents, treats or cures human disease. Reduction-of-disease-risk claims are acceptable if authorised by the applicable register (Food, food supplements and associated health or nutrition claims).
Only health claims authorised on the NHC Register could be made in ads promoting foods or food supplements. Marketers must also ensure that the advertised food or food supplement met the conditions of use associated with the authorised health claim. Health claims were defined as those that stated, suggested or implied a relationship between a food or ingredient, and health.
We considered viewers would understand the claim “helps your immune system” to mean that the CBD in the product would help with the effective functioning of the immune system. The claim was therefore a specific health claim about the benefits of CBD, for the purposes of the Code, which must be authorised on the NHC Register. However, there were no health claims relating to CBD authorised on the NHC Register and the claim therefore breached the Code.
We considered the claim “Helps with: General well-being” to be a reference to the general benefits of CBD for health-related wellbeing. It was therefore a general health claim that needed to be accompanied by a specific authorised health claim relating to CBD. However, because there were no authorised health claims for CBD, that claim also breached the Code.
On that point, the ad breached BCAP Code rules
Only nutrition claims listed in the applicable register are permitted in advertisements.
Only health claims listed as authorised in the applicable register or claims that would have the same meaning for the audience may be used in advertisements. 13.4.2 13.4.2 Advertisements 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 applicable register. Advertisements must not give a misleading impression of the nutrition or health benefits of the product as a whole and factual nutrition statements should not imply a nutrition or health claim that cannot be supported. Claims must be presented clearly and without exaggeration 13.4.3 13.4.3 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 or nutrition claims) and 13.7.1 13.7.1 Nutrition and health claims for food supplements must be permitted or authorised as provided for at rule 13.4 13.4 Only nutrition claims listed in the applicable register are permitted in advertisements.
Only health claims listed as authorised in the applicable register or claims that would have the same meaning for the audience may be used in advertisements. above. Advertisements 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 by the applicable register. (Vitamins, minerals and other food supplements).
The BCAP Code required that ads must not claim that the advertised product had been approved, endorsed or authorised by any person or body if it had not or without complying with the terms of the approval, endorsement or authorisation.
We considered consumers would understand the references made in the ad about the Novel Foods Act and ProLife CBD Oils being FSA “registered” to mean that ProLife CBD Oils had gone through the full FSA approval process required for CBD products and were authorised novel foods. We also considered consumers would understand the claims made in the ad that CBD products must be of a certain standard and quality in order to be FSA “registered” to mean that novel food authorisation was granted based on those criteria only. We further considered that consumers would understand the claims that ProLife CBD Oils were the “best standard” and “had always had the quality” to mean they had been authorised as novel foods based on this criteria alone. We considered that the ad implied that the products were approved, endorsed or authorised by the FSA.We acknowledged that novel food applications had been submitted to the FSA for the advertised ProLife CBD Oils and that the products were therefore allowed to be on the market. However, we understood that their applications were still under review and therefore the products were not yet authorised novel foods. We also understood that a dossier of information needed to be submitted when applying for novel food authorisation, and that the certificate of analysis and stability reporting testing was only one part of that. The primary objective of the novel food authorisation process was to establish that foods that had not previously been commonly used for human consumption were safe for that purpose, rather than to assess the ‘quality’ of the product as consumers would interpret that claim in the ad.
Because the products were still under review by the FSA and the novel foods application process considered factors other than the quality of the product, we concluded the ad misrepresented the requirements for novel foods authorisation and misleadingly implied the ProLife CBD Oil products were approved, endorsed or authorised by the FSA.
On that point, the ad breached BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising) and 3.47 3.47 Advertisements must not display a trust mark, quality mark or equivalent without the necessary authorisation. Advertisements must not claim that the advertiser (or any other entity referred to in the advertisement), the advertisement or the advertised product or service has been approved, endorsed or authorised by any person or body if it has not or without complying with the terms of the approval, endorsement or authorisation. (Endorsements and testimonials).
We told Gemporia Ltd to ensure that any general health claims made in their future presentations were accompanied by a specific authorised health claim, and that specific health claims were authorised on the NHC Register. We told them to ensure that their future presentations did not state or imply that their food supplements could prevent, treat or cure human disease. We also told them not to state or imply that ProLife CBD Oils were endorsed, approved or authorised by the FSA and to not misrepresent the requirements for a novel food authorisation.