Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A website for TRIP, www.drink-trip.com, a retailer of drinks infused with CBD or Magnesium, seen on 20 in December 2024, included a webpage headed “Cucumber Mint – Mindful Blend Magnesium Drink”. Images of cans appeared on a reel. Next to one image of a can, text stated “0G ADDED SUGAR”.
Under the heading “How to use”, the ad stated “Try me in the morning to help find some calm before a long day, or take a TRIP to unwind when work is over”. This was alongside an image of a can accompanied by the text “95% of TRIP customers felt that Mindful BlendTM made them feel calmer”.
Under “Ingredients” were listed “[…] fruit juices from concentrate (23%) (grape, apple, cucumber (2%)) [sic], magnesium citrate natural flavourings and botanical extracts (spearmint, lemon balm, chamomile, ginseng), citric acid, flavour enhancer (erythritol), natural sweetener (steviol glycosides), lion’s mane extract, ashwagandha root extract, L-theanine”.
Under another heading, “Nutrition”, the ad stated, “[…] carbohydrates 2.9g (of which 2.3g naturally occurring sugars)”.
Under a further heading “Studies” text stated, “Efficacy: A statistically significant decrease in the serum cortisol level appeared after (500mg) Mg supplementation, for 28 days. […] Source: http://scindeks.ceon.rs/article.aspx?artid=1452-82581403291Z&lang=en”.
Further text stated, “It’s the viral ingredients everyone’s talking about, in one unique blend. Award-winning flavours, with Magnesium, Lion’s Mane, Ashwagandha and L-theanine, every refreshing drop has been crafted for calm”.
The ad featured a reel of headlines which included “Magnesium is the latest buzzy supplement. Can it help with anxiety? While this mineral may not work for everyone, here’s what we know about the possible benefits”. Another headline mentioned “Health Benefits of Lion’s Mane - Reduces Anxiety and Stress”. A further headline read “Lion’s mane is all the rage for […] mental health”.
Under the title “FAQs” text stated, “What is the Mindful Blend range? A […] drinks range, crafted for Calm […] with science-backed ingredients, helping you relax into your best self. What’s in the Mindful Blend? […] Magnesium, Lion’s Mane, Ashwagandha & L-theanine, at the perfect amounts to deliver a uniquely delicious, authentically functional beverage, helping you unwind into your best self […] Will it make me sleepy […] It will simply help you feel calm. How do the ingredients work […] Each ingredient works with your natural bodies’ [sic] systems in different ways, to promote feelings of calm”.
Issue
The complainant, who had professional expertise in chemistry and pharmaceutical science, challenged whether:
- the “0g added sugar” nutrition claim breached the Code; and
- the claims that the product reduced serum cortisol levels and promoted feelings of calm were specific health claims that were not authorised on the Great Britain nutrition and health claims register (GB Register).
- The ASA challenged whether, by claiming that the product could help with or reduce anxiety and stress, the ad made claims to prevent, treat, or cure disease, which were prohibited by the Code.
Response
1. Trip Drinks Ltd t/a TRIP said that the sugars in their product were naturally occurring from fruit juices from concentrate (grape and apple), which were included for their flavour and functional attributes. They provided an extract on fruit nectars and the use of “no added sugar” in labelling from technical guidance issued by a trade association. They believed their use of the claim in their ad was consistent with that guidance.
TRIP also stated that under the relevant legislation a “no added sugar” claim was permitted where the product did not contain any added mono- or disaccharides, or any other food used for its sweetening properties. They said that in accordance with that regulation, the product included the required statement, “Contains naturally occurring sugars”.
TRIP explained that their formulation contained both bulk (erythritol) and intense (stevia) sweeteners. They were separately declared on the product’s pack under the text “with sweeteners”. They said that this reinforced the point that the fruit juices were not used for sweetening, but for flavour, colour, texture and mouthfeel.
2. & 3. TRIP said that they had removed the claims that the product reduced serum cortisol levels and promoted feelings of calm, and that the product could help with or reduce anxiety and stress, as a precaution while they awaited external advice. They had begun an internal audit to ensure no references remained in their advertising but hoped to be in a position to make the claims in the future.
Assessment
1. Upheld
The CAP Code required that only nutrition claims authorised on the Great Britain Nutrition and Health Claims Register (the GB Register) were permitted in marketing communications. The Code defined a nutrition claim as any claim which stated, suggested or implied that a food (or drink) had particular beneficial nutritional properties due to the amount of calories, nutrients or other substances it contained, did not contain, or contained in reduced or increased proportions. In addition, the advertiser was required to ensure that the product met the conditions of use associated with the authorised claim.
The ASA considered the claim “0g added sugar” to be equivalent to “with no added sugars”, which was a permitted nutrition claim on the GB Register. The conditions of use associated with a “with no added sugars” claim permitted it to be made only where a product did not contain any added mono- or disaccharides, or any other food used for its sweetening properties. If sugars were naturally present in the food, the conditions of use required the following indication to appear on the label: “CONTAINS NATURALLY OCCURRING SUGARS”.
While TRIP stated that the grape and apple juices from concentrate were for flavour, colour, texture and mouthfeel, rather than sweetening, there were naturally occurring sugars in the juices which added sugars to the product. We accepted that the ad stated “[…] carbohydrates 2.9g (of which 2.3g naturally occurring sugars)” and understood that the product was labelled as containing naturally occurring sugars.
The Department of Health and Social Care’s “Nutrition and health claims: guidance to compliance with Regulation (EC) 1924/2006” stated that, where a “with no added sugars” claim was made, the question of whether any other food in the product was used for its sweetening properties needed to be looked at on a case-by-case basis. It depended on the nature of the product, why ingredients were used and how it was labelled. The guidance pointed to the name of the product as likely to indicate whether the other food was present as a defining ingredient or as a sweetener.
The guidance gave the following examples. In a cranberry juice drink, the use of concentrated grape juice was usually to sweeten the product and was not included in the name. Conversely, in a mango and apple juice drink, the presence of apple juice was indicated in the name and was not added to sweeten the product. The guidance also noted that any sweetening effect was likely to be negligible with mango juice which was itself sweet.
TRIP’s ad was for a cucumber and mint drink, neither of which were likely to be sweet. The fruit concentrate was from grape and apple, neither of which were in the name of the product. We acknowledged the product contained the sweeteners erythritol and stevia, and that the fruit concentrate would contribute to other aspects of the product such as colour, texture and mouthfeel. However, it would also have a sweetening effect due to the naturally occurring sugars. We therefore considered it was used, at least in part, for its sweetening properties. We therefore considered that the claim “0g added sugar” did not comply with the conditions of use associated with the equivalent “with no added sugars” nutrition claim and therefore breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 15.1 and 15.1.1 (Food, food supplements and associated health or nutrition claims).
2. Upheld
The CAP Code required that only health claims authorised on the GB Register were permitted in marketing communications for food or food supplements. The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food or ingredient, and health.
The ad implied the magnesium in the product could reduce serum cortisol levels. The ad also referred to being “crafted for calm”; claimed the product would “simply help you feel calm”; and that “Each ingredient works with your natural bodies’ [sic] systems in different ways, to promote feelings of calm”.
We considered those claims were specific health claims for the purposes of the Code, because they implied that the ingredients had beneficial health effects. However, we had not seen any evidence which demonstrated that those claims were authorised on the GB Register and they therefore breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 15.1 and 15.1.1 (Food, food supplements and associated health or nutrition claims).
3. Upheld
The CAP Code prohibited claims which stated or implied a food (or drink) could prevent, treat or cure human disease.
We considered the claims in the ad relating to the reduction of anxiety, for example “Health Benefits of Lion’s Mane - Reduces Anxiety and Stress” would be understood by consumers as a claim to prevent, treat or cure anxiety. We further considered that in the context of the ad, the claims that the product could help with or reduce stress would also likely be understood by consumers as a reference to anxiety and its symptoms. We also considered in the context of the claims about anxiety and stress, the claim “Lion’s mane is all the rage for […] mental health” would also be understood to relate to the treatment of anxiety.
We therefore concluded that the claims that the product could help to reduce stress, and the direct claim to reduce anxiety, were claims that a food could prevent, treat or cure disease which breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 15.6 and 15.6.2 (Food, food supplements and associated health or nutrition claims).
Action
The ad must not appear again in the form complained of. We told Trip Drinks Ltd t/a TRIP to ensure their ads did not make claims that a food or food supplement could prevent, treat or cure human disease. We also told them to ensure any nutrition claims complied with the conditions of use associated with the relevant claim on the GB Register, and that they did not use specific health claims that were not authorised on the GB Register.
