Ad description
Two ads for Lumie, a light therapy company:
a. A product listing on the Lumie website, www.lumie.com, for the “Vitamin L SAD Light” seen in March 2022. An image of the light was shown, along with the product name “Vitamin L ®”. Text underneath the light stated, “Vitamin L SAD light can help lift your mood, boost concentration and energy levels or treat the symptoms Seasonal Affective Disorder and winter blues”.
Underneath that were seven images of the lamp being used in various situations. Text underneath the first image stated, “Slim and lightweight, use Vitamin L SAD light at home or take it with you to improve well-being at work or when studying”. Text underneath the second image stated, “Use Vitamin L SAD light every day for 30 minutes to recharge your batteries”. Text underneath the third image stated, “Vitamin L SAD light takes up hardly any room and can be used in portrait or landscape position. Its slim design and relative large screen means that Vitamin L lamp combined convenience with the performance you’d expect from a much larger light.” Small text underneath the last image stated, “Vitamin L is a registered trademark of Outside In (Cambridge) Limited t/a Lumie and is a reference to the mood-enhancing properties of light”.
b. A product listing on the Amazon website, www.amazon.co.uk, was seen in March 2022. It showed an image of the lamp and featured the text, “Sunlight is a natural mood-booster. If you’re indoors, light therapy is proven to put you in a better mood, boost energy and alertness. It can also be an effective treatment for SAD (seasonal affective disorder). Vitamin L Slimline Light Box for SAD”.
Issue
Beurer UK Ltd, who understood that “Vitamin L” did not exist, challenged whether the ad misleadingly implied that the product was a source of a vitamin which offered health benefits.
Response
Outside In (Cambridge) Ltd t/a Lumie said that the ads did not misleadingly imply that Vitamin L was a source of a vitamin which offered health benefits. They said that the term Vitamin L was only ever used in a brand sense and there was no statement that the Vitamin L SAD light consisted of or stimulated the synthesis of any vitamins.
They said that as Vitamin L did not exist in nature, consumers would understand that the product was advertised as an electronic device used for the treatment of seasonal affective disorder and not as a vitamin supplement. They said that they did not believe more prominent qualifications or disclaimers were likely to have a material impact on consumer understanding.
Lumie said that the registered trademark symbol had only been used in certain references to Vitamin L due to technical and legal constraints. They said that their website was accessed by consumers internationally, and whilst different titles could be displayed to consumers from certain territories, the body text was not country specific. Therefore, they said that the registered trademark symbol was added to the prominent titles for the UK version of the site, but that they were unable to include it within the body text so as not to mislead consumers in other countries into believing that “Vitamin L” was trademarked in those countries. Likewise, they said that Amazon did not allow the registered trademark symbol to be used in product listings.
In reference to a number of online reviews which purported to demonstrate that consumers believed Vitamin L was a real vitamin and were supplied by Beurer UK Ltd, Lumie said that the number was negligible when compared to the overall number of online reviews for the Vitamin L SAD light. They also said that when evaluated the reviews demonstrated that consumers were aware that Vitamin L was not a real vitamin.
Assessment
Upheld
The ASA understood that Vitamin L did not exist in nature. However, we considered that consumers were unlikely to recognise every vitamin that existed in nature and there were certain vitamins, such as Vitamin K, that were generally less well-known than others, like Vitamin C. We therefore considered that consumers would likely interpret the product name as referring to a vitamin that existed and was essential for normal bodily functions, but of which they were not aware.
We noted that Lumie believed the product reviews demonstrated that consumers were aware that Vitamin L was not a real vitamin. However, we noted that there were several examples in which it appeared that consumers referred to Vitamin L as a genuine vitamin, and in any case, we judged the ad from the perspective of the average consumer.
We noted that the ads referred to a product called “Vitamin L SAD light” and that ad (a) claimed the product could “help lift your mood, boost concentration and energy levels or treat the symptoms Seasonal Affective Disorder and winter blues” (we did not assess whether those efficacy claims could be substantiated against the Code). We considered that consumers likely understood that the product stimulated the production of “Vitamin L” and that the health benefits referenced in the ads were due to the increased absorption of this vitamin.
Whilst we acknowledged that certain references to the “Vitamin L SAD light” included the registered trademark symbol, we did not consider that this made it suitably clear to consumers that Vitamin L was not a real vitamin. We also acknowledged that ad (a) featured a disclaimer that stated Vitamin L was a registered trademark and that it referred to the “mood-enhancing properties of light”. However, we considered that this qualification was not prominent enough in the ad, and in any case it did not explicitly state that Vitamin L was not a real vitamin.
For those reasons, we concluded that the ads were likely to mislead consumers into believing that Vitamin L was a real vitamin and that its absorption provided health benefits.
The ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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), and
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
(Medicines, medical devices, health-related products and beauty products).
Action
The ads must not appear in their current form. We told Outside In (Cambridge) Ltd t/a Lumie not to misleadingly imply that the Vitamin L SAD Light was a source of a vitamin which offered health benefits.
