A Facebook post on "Forever Living A Plan To Healthier Alternative Products" page, for the food supplement Multi-Maca, seen on 25 January 2016, stated "BENEFITS Increases sperm volume and count (Up to 200%) and formation of new sperm. Increases testosterone level in men. Enhances fertility and corrects hormonal imbalance in women".
The complainant challenged the health claims made in the ad, which were required to be authorised on the EU Register of nutrition and health claims made on foods.
Lynette Heywood said she was unaware that the post would be considered as advertising. She could not remember where she first saw the ad, but had simply copied and posted it on to her Facebook page.
Forever Living Products (UK) Ltd explained that they were a network marketing company and their products were sold by independent distributors, who were not employees, but independent business owners. Nonetheless, they expected distributors to comply with their Social Media Code of Conduct and since December 2015 only company created ads could be used. Forever Living noted that the challenged ad was originally posted at the beginning of November 2015 before that policy was implemented; they had not created the ad.
Forever Living said they were unaware of the ‘Forever Living A Plan To Healthier Alternative Products’ Facebook page until they received notification of the complaint. A number of posts on the page breached their own policies and they subsequently suspended the advertiser’s account until the issues had been resolved.
The ASA noted that under EC Regulation 1924/2006 on Nutrition and Health Claims made on foods (the Regulation), which was reflected in the CAP Code, only health claims that appeared on the list of authorised health claims (the EU Register) could be made in ads promoting foods, including food supplements, and should only be made for the nutrient, substance, food or food category for which they were authorised. Health claims were defined as those that stated, suggested or implied a relationship between a food, or ingredient, and health.
We considered that consumers would understand the claims "Increases sperm volume and count (Up to 200%) and formation of new sperm”, “Increases testosterone level in men” and “Enhances fertility and corrects hormonal imbalance in women” to mean that consuming the product would result in improved fertility and, as such, that they would understand that the product provided specific health benefits for men and women who were trying to conceive. We considered the claims therefore constituted health claims which must be authorised on the EU Register.
The ad credited the claimed health benefits of the product to Multi-Maca, but we understood that there were no authorised claims on the EU Register for the Multi-Maca supplement. Because the claims were not authorised, we 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) and 15.7 15.7 Nutrition and health claims for food supplements must be permitted or authorised as provided for at rule 15.1.1 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 in its current form. We told Lynette Heywood to ensure future ads did not make health claims for foods that were not authorised on the EU Register.