A tweet and Instagram post for Protein World:
a. A tweet from television personality Holly Hagan's Twitter account, dated 24 May 2017, for Protein World’s “Carb Blocker Capsules” stated “Always take my @ProteinWorld Carb Blockers Before a Cheat meal, contain [sic] natural ingredients and stop any unused sugars being used as fat #ad” and included a photo of Holly holding a burger with a jar of “Carb Blocker” on a table in front of her.
b. An Instagram post, seen on 26 May 2017, posted on Protein World’s Instagram page stated “We are already planning our weekend treat at PW head quarters [sic] with carb blockers at the ready! Take 2 carb blockers 30 mins before a high carb meal to stop unused sugars being stored as fat in the body! Guilt free Treat…what a dream. Shop online proteinworld.com #proteinworld #lifestyle #cheatmeal #burger”. It included a photograph of a model holding a burger with a jar of Carb Blockers in front of her along with a plate of chips.
Two complainants challenged whether the claims that “Carb Blocker Capsules” could stop unused sugars from being stored as fat in the body breached the Code.
Protein World said they had spoken to Holly Hagan’s agent and asked them to take down the tweet. They also removed the Instagram post. Protein World said they had received advice to add chromium to the product to substantiate the implied health claim in the product’s name.
Protein World said there were two authorised health claims in relation to chromium’s macronutrient metabolism and glucose metabolism properties. They said they were physiologically linked and formed a feedback mechanism where the catabolism and anabolism of macronutrients, especially carbohydrates, were regulated by the glucose level in the bloodstream. By supporting both catabolism and anabolism of macronutrients, Protein World said that chromium helped to ensure there was no excessive depositing of carbohydrate which the body would by natural processes convert to fat.
Protein World provided an extract from an independent laboratory report from 2017 regarding Carb Blocker which stated that through discussion with their local Trading Standards it was agreed that the product would be redeveloped as a source of chromium which would allow the use of the approved claims concerning that substance’s contribution to normal macronutrient metabolism and maintenance of blood glucose levels. The extract stated that “the connotation of Carb Blocker will therefore be contributing to the prevention of excessive carbohydrate deposition which the body would naturally convert to fat.”
Protein World claimed that the product now contained sufficient chromium to qualify as a source of chromium, as required for the use of the claims.
Protein World considered that if the name of the product had been Carb Block or Carb Blocked, consumers may have considered the product completely prevented the reabsorption of blood sugars. However they claimed that the term “blocker”, given the sporting context of the term “blocker” and its use in medicines such as beta blockers, would be understood by consumers to mean something that impeded the action of something else without completely preventing it.
The ASA noted that 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. Health claims were defined as those that stated, suggested or implied a relationship between a food, or ingredient, and health. Advertisers must show that health claims were authorised on the EU Register in relation to the relevant foodstuffs contained in that product and that they complied with the related conditions of use.
We considered that in the context of a food supplement, consumers would consider “Carb Blocker” to refer to something that offered significantly greater prevention than the body could naturally achieve without its use, i.e. the significantly improved ability to prevent the storage of unused sugars as fat.
We considered consumers would understand that process to be a health benefit of the product. The claims and product name were therefore health claims for the purposes of the CAP Code. We did not consider that in the context of the advertising claims consumers would interpret the word “blocker” differently to “block” and “blocked”, as Protein World had suggested.
There were two authorised health claims on the EU Register for chromium: “Chromium contributes to normal macronutrient metabolism”; and “Chromium contributes to the maintenance of normal blood glucose levels”. The claims could only be used for foods which were at least a source of trivalent chromium.
We noted the comments Protein World had made regarding their contact with a third-party consultant and their local Trading Standards department. However, Protein World did not provide evidence that demonstrated their product contained sufficient quantities of trivalent chromium to meet the conditions of use associated with either of the authorised health claims.
We understood that marketers were allowed to exercise some flexibility in rewording authorised claims, provided that the reworded claim was likely to have the same meaning for consumers as the authorised health claim. The aim of the rewording should be to aid consumer understanding, taking into account factors such as linguistic or cultural variations and the target population. The authorised claims for chromium related to “normal macronutrient metabolism” and “the maintenance of normal blood glucose levels”, and made clear that chromium “contribute[d]” to those physiological functions.
We considered the advertising claims did not have the same meaning as the authorised claims, which referred to normal physiological processes of the body relating to macronutrient metabolism and blood glucose levels, because they implied the product was significantly greater at preventing carbohydrates, including unused sugars, from converting into fat. That impression was strengthened by the ads’ photos and the hashtags such as #cheatmeal. The ads also attributed the health benefits to the advertiser’s product rather than to the substance to which the authorised health claim related. We concluded that the product name “Carb Blocker” and claims that the product prevented unused sugars being stored in the body did not accurately reflect the meaning of either of the specific authorised health claims and therefore breached the Code.
Article 1(3) of the Regulation allowed 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. We considered that in such instances the accompanying nutrition or health claim must bear relevance to the nutrition or health claim made in the trade mark or brand name. We noted that the product name “Carb Blocker”, which as referenced above was a health claim, was not accompanied by an authorised health claim in the ads. We furthermore understood that there were no authorised health claims on the EU Register, for any substance, which would be understood by consumers as having the same meaning as the health claim “Carb Blocker”. We therefore considered the product name “Carb Blocker” also breached the Code in that regard.
Because the health claims made in advertising for the Carb Blocker product were not authorised on the EU Register we concluded the ads 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 and nutrition claims).
The ads must not appear in their current form. We told Protein World not to make health claims for foods if they were not listed as authorised in the EU Register. In particular, they must not use the product name “Carb Blocker” or claims such as “stop any unused sugars being stored as fat” in their advertising.