Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
An Instagram post on TV personality Sophie Kasaei’s page seen on 22 March 2017, included text which stated “#ad Tummy Game Plan? You know it’s @flattummytea. Nothings [sic] gonna get you flat the same as this tea will. The excuses are in the past, much like the water weight I used to have”. The post included a before and after style image of Ms Kasaei. In the left-hand image she wore a sports bra and leggings, her hair was tied in a ponytail and her right arm was by her side with her stomach distended. In the right-hand image she was dressed as before, her hair was down, her right arm was placed on her hip and her stomach appeared to be flatter. In both images she held two sachets of tea, one with text that said “ACTIVATE” and the other which said “CLEANSE”.
Issue
1. The complainant challenged the claims which implied the tea could help with water weight, which were subject to the Regulation, as reflected in the CAP Code.
2. The ASA challenged whether the product name “Flat Tummy Tea” which was subject to Regulation (EC) No. 1924/2006 on nutrition and health claims made on food (the Regulation), as reflected in the CAP Code, complied with the Code.
Response
1. & 2. Nomad Choice Pty Ltd t/a Flat Tummy Tea said they were not aware of the EU Register of nutrition and health claims (the Register) or that their product name and advertising claims would need to be compliant with the Regulation as reflected in the Code. They stated that they did not hold scientific data to support their claims that the tea ingredients could help with water weight loss.
Assessment
1. Upheld
According to the Regulation, which was reflected in the CAP Code, only health claims listed as authorised on the Register were permitted in marketing communications for a food. Health claims could be made through the use of images and in the overall presentation of an ad as well as in text. However they were represented, health claims must be presented clearly and without exaggeration.
The ASA considered that the average consumer would interpret the claim “Tummy Game Plan? You know it’s @flattummytea. Nothings [sic] gonna get you flat the same as this tea will. The excuses are in the past, much like the water weight I used to have” to mean that if they drank the product, it would reduce any “water weight” that they had and would help them to achieve a “flat tummy”. Further, we considered that consumers would interpret the images as a demonstration of what they could achieve if they drank the tea. We also considered consumers would understand the reduction of “water weight” and the achievement of a “flat tummy” as beneficial health effects of consuming the product.
Flat Tummy Tea did not identify any authorised health claims on the Register relating to their product or any of its ingredients. Because the health claims in the advertising were not authorised on the Register, we concluded that the claim “Nothings [sic] gonna get you flat the same as this tea will. The excuses are in the past, much like the water weight I used to have” and the image in the ad breached the Code.
On this point, the ad breached CAP Code (Edition 12) rules
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.
and
15.1.1
15.1.1
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
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.)
2. Upheld
Article 1(3) of the Regulation required that a trade mark or brand name appearing in the advertising of a food which may be construed as a nutrition or health claim may be used, provided that it was accompanied by a permitted nutrition or authorised health claim in that advertising. Article 28(2) provided for an exemption from that requirement until 19 January 2022, for products bearing trademarks or brand names existing before 1 January 2005. We understood that Flat Tummy Tea did not have a pre-2005 registered trade mark and therefore that exemption did not apply.
We considered that consumers would understand the product name “Flat Tummy Tea” to mean that the product would help with bloating and water weight. As referenced above, we considered that the claims were health claims for the purposes of the CAP Code.
Flat Tummy Tea did not identify any authorised health claims on the Register relating to their product or any of its ingredients. Because the health claims in the advertising were not authorised on the Register, and the product name was therefore not accompanied by an authorised health claim, we concluded that it breached the Code.
On this point, the ad breached CAP Code (Edition 12) rules
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.
and
15.1.1
15.1.1
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
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.)
Action
The ad must not appear again in its current form. We told Flat Tummy Tea to remove the claims and ensure that their future ads did not make health claims which were not listed as authorised on the EU Register. We also told them not to make references to health-related well-being in brand names unless those claims were accompanied by a permitted health or nutrition claim.
