Background
On 25 May 2012, Commission Regulation (EU) No 432/21012 of 16 May 2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health, was published in the Official Journal of the European Union (EU). The Regulation would enter into force on the twentieth day following that of its publication in the Official Journal of the EU. That list included the claim “contributes to the reduction of tiredness and fatigue” in relation to the eight listed nutrients in the ad.
Ad description
A national press ad for a multi-vitamin pill, published 19 November 2011, was sub-headed "Includes 8 nutrients that can contribute to the reduction in tiredness and fatigue". The ad included a comparison table which listed "Nutrients" including "Riboflavin", "Niacin", "Vitamin B6", "Folic Acid", "Vitamin B12", "Pantothenic Acid" and "Magnesium", and stated the amount included in the product.
Issue
The complainant challenged whether the claim that the product could aid a reduction in tiredness and fatigue could be substantiated.
Response
Nature's Best Health Products Ltd (Nature's Best) said that the pill contained eight vitamins and minerals for which the European Food Safety Authority (EFSA) had published a positive opinion for a cause and effect between the dietary intake of the nutrient and reduction of tiredness and fatigue. They said the nutrients were riboflavin, niacin, vitamin B6, folic acid, vitamin B12, pantothenic acid, vitamin C and magnesium and provided the EFSA Scientific Opinions for each of those nutrients. They stated that sufficient levels of those nutrients could be found in one tablet, as defined by the Council Directive on nutrition labelling for foodstuffs (90/496/EEC) and added that the levels were detailed in the ad. They noted that the EC Regulation on Nutrition and Health Claims was subject to complex transitional periods and was not yet fully in force, but stated that EFSA had published scientific options which verified the scientific substantiation of the ad's claims.
Assessment
Not upheld
The ASA consulted the Department of Health. We understood that, at the time the ad appeared, the draft Commission Regulation establishing the list of Nutrition and Health Claims had been agreed by EU Member States at a standing committee and was currently with the European Parliament (EP) and the Council for a three-month period of scrutiny, and, if agreed by those bodies, would subsequently be published in the Official Journal of the EU and become law. We therefore understood that, at the time the ad appeared, the draft Annex for the EU register of Health Claims was not yet confirmed in law, but also acknowledged that it was an indication of which health claims could be authorised in due course. We understood that a positive ESFA opinion should be regarded as a valid scientific opinion.
We noted that, in order to satisfy the EFSA conditions of use for the health claim "contributes to the reduction of tiredness and fatigue" the food supplement would need to contain at least 15% of the reference intake quantities listed in the relevant Annex (Annex XIII) for riboflavin, niacin, vitamin B6, folic acid, vitamin B12, pantothenic acid, vitamin C and magnesium. We noted that the product contained sufficient quantities of each of those nutrients to be in line with that requirement.
We noted that the ESFA opinion of the claim "reduction of tiredness and fatigue" in relation to riboflavin, niacin, vitamin B6, folic acid, vitamin B12, pantothenic acid, vitamin C and magnesium was positive.
Because we understood that the claim "contributes to the reduction of tiredness and fatigue" had received a positive ESFA opinion in relation to the eight listed nutrients, and because we noted that the product also contained sufficient quantities of those nutrients to be in line with the relevant conditions of use, we concluded that the claim "Includes 8 nutrients that can contribute to the reduction in tiredness and fatigue" was not misleading.
We investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation), 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. and 15.17 15.17 Claims referring to children's development and health are acceptable if authorised by the European Commission. (Food Supplements and other Vitamins and Minerals), but did not find it in breach.
Action
No further action necessary.
