Background
On 7 April 2025, the Advertising Codes were updated to reflect the revocation and restatement of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs – the legislation from which the majority of the CAP and BCAP rules on misleading advertising derived) by the Unfair Commercial Practices provisions in the Digital Markets, Competition and Consumers Act 2024 (DMCCA). On that date, the wording of a number of the rules in the Advertising Codes was changed to reflect relevant changes introduced by the DMCCA on 6 April 2025.
Given that the complaint that formed the subject of this ruling was received before 7 April 2025, the ASA considered the ads and complaint under the wording of the rules that existed prior to 7 April 2025, and the Ruling (and references to rules within it) should therefore be read in line with this wording, available here – CAP Code and BCAP Code.
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A website review page and an Instagram reel for Tonic Health, seen on 22 October 2024:
a. The product review page on the Tonic Health website, www.tonichealth.co, contained testimonials from customers consisting of a star rating, customer name, title and a brief review.
b. The Instagram reel, on Tonic Health’s account @tonichealth, entitled “THE BEST SLEEP SUPPLEMENT ON THE MARKET” promoted the “Rest & Recover Effervescent tablet”. It featured a video of a man in the supplements aisle of a supermarket who stated, “Are you struggling with sleep? Well, I’ve got just the thing for you […] Tonic have just launched our Rest & Recover, which is over 300 mg of bioavailable magnesium along with ashwagandha and lemon balm.” Nutritional information for the product appeared on-screen. The caption stated, “Struggling with sleep? I’ve got just the thing to help Introducing Tonic Rest & Recover Our new 4-in1 effervescent designed to support your sleep and recovery With a soothing cherry flavour, each effervescent blends 300mg of essential magnesium, 100mg of KSM-^^ Ashwagandha, and 500mg of calming lemon balm. This powerhouse combination helps ease stress, improve sleep, and support muscle recovery so you can wake up refreshed and ready for the [closing text cut off]”.
Issue
- The complainant, a registered Associate Nutritionist, challenged whether the testimonials in ad (a) were genuine.
- The ASA challenged whether the general and specific health claims in ad (b) complied with the Code.
Response
1. Tonic Nutrition Ltd t/a Tonic Health acknowledged that duplicated testimonials had appeared under different customer names. They said that was due to a technical error which had now been fully rectified. They said they had removed the testimonials in question and were implementing stricter internal processes in order to check all reviews and to ensure that there were no further errors of that type.
2. Tonic Health said they recognised that the claims “THE BEST SLEEP SUPPLEMENT ON THE MARKET” and “Are you struggling with sleep?” required substantiation through the Great Britain Nutrition and Health Claims Register (the GB NHC Register). They had therefore removed those claims from their advertising.
Tonic Health said the phrase “Rest & Recover” was widely recognised as shorthand for rest and recuperation and was used colloquially to describe moments of winding down, particularly in the evening. They used the claim in that lifestyle and cultural context; in their view, it did not imply physiological change or health benefits. They believed that the Code did not automatically apply in circumstances where a phrase was clearly part of a product range or sub-brand and was not highlighted as an individual claim. Notwithstanding that, they always accompanied general phrases such as “Rest & Recover with a valid authorised health claim from the GB NHC Register. They said they used the claim “Magnesium contributes to the normal functioning of the nervous system” alongside relevant products.
Assessment
1. Upheld
The CAP Code stated that marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication was genuine, unless it was obviously fictitious, and hold contact details for the person who, or organisation, that gave it.
The complainant reported having seen identical wording for a product review appear twice on the same page, attributed to two different customer names. The ASA considered the duplicated reviews created the misleading impression that more customers had independently submitted similar positive feedback than was actually the case. We understood that when the complainant approached Tonic Health in November 2024, they were told that the duplicated reviews had appeared in error due to a technical issue which had now been rectified. However, we understood that duplicated reviews continued to appear as late as January 2025.
We welcomed Tonic Health’s assurances that the affected testimonials had been removed, that the issue had been fully rectified and that all reviews would be checked in future. Some of the reviews were duplicated and attributed to the wrong author. We therefore considered they were not genuine. For that reason we concluded the ads were misleading and had breached the Code.
On that point, ad (a) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.45 (Endorsements and Testimonials).
2. Upheld
The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food or ingredient, and health, and required that only health claims authorised on the applicable register, which in this case was the GB NHC Register, were permitted in marketing communications for foods. The Code also required that general health claims, which were claims that referred to the general benefits of a nutrient or food for overall good health or health-related well-being, must be accompanied by a specific authorised health claim.
We first assessed which claims were specific health claims and which, therefore, must be authorised on the GB NHC Register. Ad (b) stated, “THE BEST SLEEP SUPPLEMENT ON THE MARKET” and “Are you struggling with sleep?”. We considered those were specific health claims because they implied that the supplement, and its listed ingredients – magnesium, ashwagandha and lemon balm – provided the beneficial health effect of aiding the quality of sleep. We further considered that “THE BEST SLEEP SUPPLEMENT ON THE MARKET” was a comparative specific health claim because it implied that the product was the most beneficial to sleep quality. We welcomed Tonic Health’s assurance that they had removed the claims. However, we had not seen any evidence which demonstrated that they were authorised on the GB NHC Register. The ad further stated “[…] each effervescent blends 300mg of essential magnesium, 100mg of KSM-^^ Ashwagandha, and 500mg of calming lemon balm. This powerhouse combination helps ease stress, improve sleep, and support muscle recovery so you can wake up refreshed […]”. We considered that those were specific health claims that the substances named had the beneficial effect of relieving stress, improving sleep quality and supporting muscle recovery. However, we had not seen evidence that those claims were authorised on the GB NHC Register.
We then assessed which claims were general health claims, which must be accompanied by an authorised specific health claim on the GB Register. We acknowledged Tonic Health’s comments; however, the Code applied to claims that appeared in product names in the same way that it did to claims appearing elsewhere in ads. We considered the claim “Rest & Recover”, in the context of an ad for a supplement on an account for Tonic Health, would be understood as a reference to the general benefit of the supplement for overall good health and wellbeing. We considered it was therefore a general health claim for the purposes of the Code and would only be acceptable if accompanied by a relevant specific authorised health claim.
Because we had not seen any evidence that the specific and comparative health claims in ad (b) were authorised on the GB Register, and because the ad made a general health claim that was not accompanied by a relevant authorised specific health claim, we therefore concluded that it breached the Code.
On that point, ad (b) breached CAP Code (Edition 12) rules 15.1, 15.1.1 and 15.2 (Food, food supplements and associated health or nutrition claims) and 15.7 (Food supplements and other vitamins and minerals).
Action
The ads must not appear in the form complained of. We told Tonic Nutrition Ltd t/a Tonic Health to ensure that future testimonials accurately represented customer feedback. We also told them to ensure any specific health claims or comparative specific health claims made in their future advertising were authorised on the GB NHC Register and complied with the conditions of use for those claims. Additionally, any general health claims needed to be accompanied by a relevant authorised specific health claim.
