A web page headed "Weight Management", seen on www.hollandandbarrett.com in October 2017, featured a number of subcategories. These linked through to listings for a range of food supplement products.
Two complainants, one of whom was a former Trading Standards officer, believed the product category heading “weight management” was a health claim that would be understood to apply to all the products featured within the category. They therefore challenged whether the claim was authorised on the EU Register for each product in that category.
Holland & Barrett Ltd stated that the ASA had no remit to rule on food claims in advertising generally without the advertiser’s agreement. The ASA was not a control body for official controls on food under Regulation EC 882/2004 in order to ensure the verification of compliance with feed and food law, animal health and welfare rules. Even if the ASA was authorised to rule on food claims, the claims at issue were website category headings and not advertising under the CAP Code. Notwithstanding the above, Holland & Barrett said that all the products within the “weight management” category on their website could support claims that were either authorised on the EU Register as weight management/weight control claims that fell under Article 13(1)(c) of Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), or listed as “on hold” claims awaiting authorisation relating to botanical substances. In the case of “on hold” claims, these were subject to the transitional provisions at Article 28(6). Providing that an application for authorisation of such claims had been made by January 2008, such claims need only comply with the rules in place prior to the entry into force of the Regulation, that is before 19 January 2007. The claims were therefore outside the remit of the ASA, given that the CAP Code did not cover advertisers’ own websites until 2010. They provided further explanation in relation to three examples put to them by the ASA.
In relation to a product called “Nutritional Headquarters Fat Metaboliser”, Holland & Barrett stated that the product contained chromium at a level that satisfied the requirements for use of the authorised health claim “chromium contributes to normal macronutrient metabolism”. They stated that fat was generally accepted as a macronutrient by various authorities including the European Food Safety Authority (EFSA). The product also contained green tea extract and cayenne pepper. They said these ingredients were subject to “on hold” claims, and provided links to studies on obese people in Thailand and Japan published in 2007 that they believed supported the claim in relation to green tea.
In relation to a product called “Holland & Barrett Super Green Tea”, they stated that the product contained chromium at a level that satisfied the requirements for use of the authorised health claim “chromium contributes to normal macronutrient metabolism”. The product also contained green tea extract, guarana and bladderwrack. They said those ingredients were subject to “on hold” claims, and provided links to studies that they believed supported the claim in relation to green tea.
In relation to a product called “Holland & Barrett Raspberry Ketone Complex”, they stated that they did not make any health claims about the raspberry ketones. They stated that the product contained glucomannan at a level that satisfied the requirements for use of the authorised claim “Glucomannan in the context of an energy restricted diet contributes to weight loss”.
In relation to whether the ASA had the remit to rule on food claims, the ASA noted that the CAP Code had long included rules on food claims, and that revised rules on health and nutrition claims reflecting the requirements of Regulation 1924/2006 were the subject of public consultation in 2009. The ASA and CAP had in place a memorandum of understanding with the Department of Health and Social Care (DHSC) and the Food Standards Agency (FSA) in which they agreed that the ASA should be the established means for the investigation of complaints about the advertising of food, including in relation to rules that reflected the requirements of Regulation 1924/2006. Regulation EC 882/2004 did not preclude self or co-regulation, subject to adequate supervision. The ASA took the view that it was entitled to rule on the claims.
In relation to whether the category headings might constitute claims under the CAP Code, 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 management, 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 management” category to have the inherent function of helping them to control or maintain their weight, including following weight loss, as opposed to products that would enable the user to undertake other activities that would help them maintain their weight (e.g., 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.
We sought a view from the Food Standards and Labelling Focus Group (FSLFG). Members of the group included enforcement officers from local authorities and membership consisted of representatives from the regional food enforcement groups, Primary Authority supermarkets group and Chartered Trading Standards Institue. In addition the group included invited policy officials as observers from the FSA, DHSC, Defra and Regulatory Delivery as well as representatives from the Association of Public Analysts, the ASA and the Business Expert (Food Standards and Labelling) Group. The FSLFG considered that the “weight management” category heading was a health claim and that therefore all the products advertised in the category must meet the conditions of use for an authorised weight loss/management health claim. According to the Regulation, to be permitted in marketing communications for foods, including food supplements, slimming and weight control, claims were required to be listed as authorised on the EU Register, being based on generally accepted scientific evidence and well-understood by the average consumer (Article 13(1)(c)). Health claims were defined as those which stated, suggested or implied a relationship between a food, or ingredient and health. For specific health claims that were "on hold" (i.e. filed with supporting evidence by January 2008 but awaiting approval by the European Food Safety Authority (EFSA) and European Commission, as for botanical ingredients), the transitional provisions at Article 28(6) allowed for continued use provided that the claim being used had the same meaning as the “on hold” claim, related to the same active ingredient and the same conditions of use and had been used in compliance with applicable national provisions before the date of entry into force of the Regulations ‒ i.e. that the claims were not misleading and could be substantiated by evidence. The claim “chromium contributes to normal macronutrient metabolism” was authorised on the EU Register. However, we did not consider that the claim “weight management” was likely to have the same meaning for consumers as the authorised claim. We considered that the wording went beyond the authorised claim and implied that the product could help maintain weight.
The claim “support of metabolism and fat oxidation”, for green tea extract, was given as “on hold” in a list of botanical substances. We acknowledged that Holland & Barrett had submitted evidence that they believed substantiated the “on hold” claim. However, we did not consider that the claim “weight management” was likely to have the same meaning for consumers as the “on hold” claim. Therefore we did not consider it was necessary to assess the evidence provided, although we did note that EFSA had published a scientific opinion for health claims related to Camellia sinensis (tea) which concluded that, on the basis of the evidence submitted, a relationship had not been established between the consumption of catechins from green tea and contribution to the maintenance or achievement of a normal body weight, or an increased beta-oxidation of fatty acids leading to a reduction in body fat mass. Nor was there any evidence that the claim had been used in compliance with national provisions before 19 January 2007.
The claim “contributes to weight reduction/supports in weight loss programmes”, for cayenne pepper, was currently given as “on hold” in a list of botanical substances. We considered that consumer understanding of the claim “weight management” would encompass claims about weight reduction or loss and that it did not exaggerate the meaning of the “on hold” claim. However, Holland & Barrett had not provided any evidence to support the “on hold” claim. Whilst not decisive (given that the claim was “on hold”), we noted that EFSA had published negative scientific opinions on capsaicin (the active ingredient of cayenne pepper) and the maintenance of body weight after weight loss. Nor was there any evidence that the claim had been used in compliance with national provisions before 19 January 2007.
The claim “traditionally used in weight control/used to contribute to fat metabolism which in turn helps weight control”, for guarana, was currently listed as “on hold” in a list of botanical substances. We noted that the claim referred to “weight control”, rather than loss or reduction, and was likely to have the same meaning for consumers as “weight management”. However, Holland & Barrett had not provided any evidence to support the “on hold” claim. We noted that the claim “helps to burn fat” for a combination of guarana and green tea was confirmed as non-authorised on the EU Register. Nor was there any evidence that the claim had been used in compliance with national provisions before 19 January 2007.
The claim “effect Weight control/Satiety”, for bladderwrack, was currently given as “on hold” in a list of botanical substances. We considered that the claim “weight management” was likely to have the same meaning for consumers as “weight control”. However, Holland & Barrett had not provided any evidence to support the “on hold” claim. We noted that the European Medicines Agency’s summary of medicinal uses for bladderwrack stated that there was insufficient clinical evidence to support its use in helping weight loss. Nor was there any evidence that the claim had been used in compliance with national provisions before 19 January 2007. We concluded that the claim “weight management” did not comply with the Code in relation to the “Fat Metaboliser” and “Super Green Tea” products.
In relation to the “Raspberry Ketone Complex” product, we noted that the claim “Glucomannan in the context of an energy restricted diet contributes to weight loss” was authorised on the EU Register. The authorised claim was given on the product listing page. We considered that consumer understanding of the claim “weight management” would encompass claims about weight loss and that it did not exaggerate the meaning of the authorised claim. We also understood that the product complied with the conditions of use for the authorised claim. We therefore concluded that the claim “weight management” complied with the Code in relation to the “Raspberry Ketone Complex” product.
The ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 15.1, 15.1.1 and 15.7 (Food, food supplements and associated health or nutrition claims).
The ads must not appear again in the form complained about. We told Holland & Barrett Retail Ltd to ensure that they did not use the categorisation “Weight Management” to market food supplements unless they held evidence that those products were capable of carrying an equivalent health claim that was authorised on the EU Register.