The ad appeared in March 2021, and we therefore assessed them under the Code rules 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:
Two issues were investigated, both of which were Upheld.
A pre-roll YouTube ad, seen on 27 March 2021, for Lyma Life, for a food supplement, began with a woman saying “This actually has changed my life, and it’s changing the lives of thousands of people.”
The ad then included testimonials from people who had used the supplement that included: “Less stress, more energy”; “I don’t get sick”; “Stay balanced and focused”; “ANXIETY I’m less stressed than ever before”; “Great for mood and hair and skin”; and “It’s helping people to become less stressed, to look their best, to have more energy, to be able to function their best”.
The video also included images that appeared to be customer feedback on social media and email that included: “decreased my anxiety”; and “I stopped for a short while; my anxiety hit me rock hard again”. One customer who claimed to suffer from Trigeminal neuralgia stated that “My pain totally disappeared”. The ad included further images of feedback including: “My hair was always thin and falling out, it’s thicker now & I am losing less”; “… has helped tremendously with my insomnia”; “Mother, 52 who was left exhausted by severe menopausal symptoms claims a ‘super supplement’ made her feel better in a WEEK after male GP dismissed her concerns”; “Containing only peer-reviewed, patented ingredients, LYMA works to reduce inflammation, boost immunity, balance hormones and enhance mental clarity”; “Users have boasted deeper sleep, more radiant skin and restored emotional balance after use” and “Strengthening her nails, hair, skin as well as helping her sleep and immune system [sic]”.
The complainant challenged whether:
1. the claims to prevent, treat or cure disease such as “decreased my anxiety”, “I stopped for a short while; my anxiety hit me rock hard”, “ANXIETY I’m less stressed than ever before”; and claims that the product could reduce stress: “My pain totally disappeared”; “… has helped tremendously with my insomnia”; and “… reduce inflammation” were in breach of the Code; and
2. the ad made general and specific health claims that were in breach of the Code.
Lyma Life responded that they had removed the YouTube video. They said that the statements in the video were statements from LYMA users. Other claims complained about were from users of social media platforms, whose comments appeared on-screen during the ad, and others came from independent editorial which was also flashed on-screen during the ad. They said that they would put a new process in place to validate consumer comments. They also said some of the comments in the ad were spoken by a LYMA employee, and said that future claims relating to a LYMA employee’s own experience were not used in marketing communications.
The CAP Code prohibited claims that stated or implied that a food could prevent, treat or cure human disease. The ASA considered that consumers would understand from the claims “decreased my anxiety”, “I stopped for a short while; my anxiety hit me rock hard”, “ANXIETY I’m less stressed than ever before” and further claims in the ad that the LYMA food supplement had helped “people to become less stressed” was an effective treatment for anxiety and stress. We considered that consumers would understand the claims “my pain totally disappeared”, “has helped tremendously with my insomnia” and “reduce inflammation”, to mean that the food supplement could treat or cure pain, inflammation, and the condition insomnia respectively. We also considered that the claim “I don’t get sick” implied that the food supplement could help to prevent people from becoming ill.
We therefore considered that the ad made claims that a food supplement could prevent, treat or cure disease, and concluded that it therefore breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 15.6 15.6 These are not acceptable in marketing communications for products within the remit of this section: and 15.6.2 15.6.2 Claims that state or imply a food prevents, treats or cures human disease. Reduction-of disease-risk claims are acceptable if authorised by the European Commission (Food, food supplements and associated health or nutrition claims).
According to EC Regulation 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 made on foods (the EU Register) were permitted in marketing communications published on or before 31 December 2020. From 1 January 2021, only health claims authorised on the Great Britain nutrition and health claims (NHC) register (the GB Register) were permitted in marketing communications.
The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food, drink or ingredient and health. Any authorised health claims made in an ad must meet the associated conditions of use.
We considered that the claims “Stay balanced and focused”; “Great for mood and hair and skin” and “It’s helping people to […] look their best, […] and to be able to function their best” were general health claims for the purpose of the Code. General health claims were defined in the Code as references to general benefits of a nutrient or food for overall good health or health-related well-being. Those were acceptable in ads only if accompanied by a specific authorised health claim. Because those general health claims were not accompanied by specific authorised health claims, they breached the Code.
The ad included claims that the supplement could help people have more energy, boost immunity, boost deeper sleep, strengthen nails, hair and skin, balance hormones, enhance mental clarity, help with symptoms of the menopause, and provide an anti-aging ‘boost’ through its antioxidant effects. We considered those claims were specific health claims for the purposes of the Code because they implied the LYMA food supplement provided the beneficial health effects of improving sleep (rather than treating the condition insomnia), energy levels, immune function, mental function, that it protected the body from oxidative stress and therefore from the effects of ageing, and that it could help with symptoms of menopause. However, we had not seen evidence that demonstrated that any of the health claims in the ad, including all of those listed above, were authorised on the GB Register, or that the LYMA supplement met the conditions of use associated with any authorised specific health claims.
LYMA Life had told us that the claims in the ad were from LYMA users, and that they would in future put in place a process to validate consumer claims. However, quotes taken from consumer reviews and media, when used in marketing communications, were still required to comply with the CAP Code, including the rules relating to claims made about foods and food supplements.
Because the ad made general health claims that were not accompanied by specific authorised health claims, and specific health claims that were not authorised on the GB Register, we concluded that it breached the Code.
On that point, 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. and 15.2 (Food, food supplements and associated health or nutrition claims) and 15.7 15.7 Nutrition and health claims for food supplements must be permitted or authorised as provided for at rule 15.1 15.1 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. 1 above. 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. (Food supplements and other vitamins and minerals).
The ad must not appear again. We told Lyma Life Ltd to ensure that any general health claims in their ads were accompanied by specific authorised health claims, and that specific health claims were authorised on the GB Register and their product met the associated conditions of use for the relevant authorised claim. We also told them not to state or imply that their food supplements could prevent, treat or cure human disease.