Ad description
A national press ad for a vitamin supplement was headed "Most Trusted by Mums Pregnacare conception". Further text stated "For women who are trying for a baby Zinc contributes to normal Fertility and Reproduction Plus 20 nutrients including Folic Acid, Vits B12, D Part of the No.1 Pregnacare range". In the bottom right-hand corner, the ad featured an image of a sperm entering an egg and text which stated "UK's No1 PREGNANCY SUPPLEMENT BRAND".
Issue
Two complainants, who believed the ad made the implied claim that the product would help women conceive, challenged whether that was an authorised health claim on the EU Register of Nutrition and Health Claims made on Foods (the EU Register).
Response
Vitabiotics Ltd said the ad was intended to show the product was suitable for women who were trying to conceive. They acknowledged that a claim that a food assisted a woman to conceive would be a health claim for the purposes of European Regulation (EC) No 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation), and as such would need to be authorised on the EU Register. They noted there were no authorised claims to that effect, and therefore such a claim should not be implied in advertising. They said that if the ASA considered that was the implication of the ad, they would make any relevant changes.
Vitabiotics said it was clear from the product name, "Pregnacare Conception", and the text "For women who are trying for a baby" that the product was intended for women who were planning conception. They believed those claims were necessary to indicate when the product was intended to be used, and that that information could not be stated in any other way. They pointed out that the ad did not state, for example, that the product was "to help" or "to assist" women who were trying for a baby.
Vitabiotics said the product contained 400 micrograms of folic acid, which was the amount recommended by the Department of Health (DH) for women who were trying to conceive. They quoted from a page on the NHS website, headed "Why do I need folic acid in pregnancy?", which stated "The Department of Health recommends that women should take a daily supplement of 400 micrograms of folic acid while trying to conceive". Vitabiotics said it was clear that in using the wording "trying to conceive", the DH did not imply that folic acid would assist or increase the chances of conception. They said the text "For women who are trying for a baby" directly explained when the product was to be used, and mirrored the DH wording, given that "trying for a baby" was the same as "trying to conceive". They therefore did not have any intention to claim that the product assisted conception.
Vitabiotics considered the product name was not a claim in itself, because it indicated when the product was used; around the time of conception. They believed the average consumer to whom the ad was targeted − women who were planning conception − would interpret the name in that way and would not interpret it more widely.
Notwithstanding that, they said that even if the name "Pregnacare Conception" was considered to be an implied health claim that the product supported conception or reproduction, Article 1(3) of the Regulation allowed trademarks and brand names which might be construed as a health claim to be used without being authorised as a claim on the EU Register, provided that the name was accompanied by a related authorised health claim. They considered the ad fulfilled that requirement because it included a related authorised health claim, "Zinc contributes to normal fertility and reproduction". They confirmed the product met the conditions of use for that authorised health claim. Vitabiotics believed the authorised claim for zinc was related and fully relevant to the product name "Pregnacare Conception". They highlighted that the European Food Safety Authority (EFSA) Opinion which had recommended the claim be authorised stated that the EFSA assumed the target population for the claim was the female and male population of reproductive age. Vitabiotics considered the link between the authorised claim for "normal fertility and reproduction" and the product name was therefore very clear when the claims were viewed both in context with the rest of the ad and when the product name was viewed in isolation. They believed the word "fertility" in the authorised claim was likely to be a stronger indication in the mind of the average consumer than the word "Conception" in the product name.
Vitabiotics added that the image of the sperm and egg was simply an image showing conception, which was also to suggest the product was to be used around the time of conception. They considered the image did not imply the product could assist or increase the chance of conception any more than the word 'conception' itself did.
Assessment
Upheld
The ASA noted that according to the Regulation, which was reflected in the CAP Code, only health claims listed as authorised on the EU Register were permitted in marketing communications for foods, including food supplements. Health claims were defined as those that stated, suggested or implied a relationship between a food, or ingredient, and health. Health claims could be made through the use of images and in the overall presentation of an ad as well as in text. The Regulation also provided that trademarks or brand names which made a health claim must be accompanied by a related authorised health claim. However they were represented, health claims must be presented clearly and without exaggeration.
We understood the name "Pregnacare Conception" constituted a trademark or brand name for the purposes of Article 1(3) of the Regulation, and therefore considered whether it was also a health claim for the purposes of the Regulation. We considered the consumers to whom the ad was targeted would interpret the product name as implying a relationship between the supplement and health, specifically the process of normal healthy conception, and we therefore considered the product name made an implied health claim which must consequently be accompanied by a related authorised health claim. The ad included the authorised health claim “Zinc contributes to normal fertility and reproduction”, which we considered was relevant and related to the health claim implied in the product name. Notwithstanding that we considered the product name in and of itself was therefore not in breach of the Code and would likely be acceptable in other contexts. We were concerned that the overall impression created by the various elements of the ad in combination was that the supplement provided a health benefit over and above contributing to normal fertility and reproduction.
We noted Vitabiotics’ view that because the claim “For women who are trying for a baby” was similar to a phrase which appeared on the NHS website in an article titled "Why do I need folic acid in pregnancy?", the claim in the ad would be interpreted as referring only to the time period during which the supplement should be taken. However, the phrase on the NHS website appeared in context with information about why folic acid was important to the development of a healthy foetus, on a website providing health advice from the government, whereas the context of the claim in the ad was significantly different It did not follow, therefore, that consumers would take the same interpretation. We considered that in the context of the ad, including the emphasis on the words “trying for a baby”, which were more prominent than the rest of the claim through the use of larger, bolder text, the claim contributed to an implication that the supplement had a health benefit over and above contributing to normal fertility and reproduction.
We also noted that the words “Fertility & Reproduction” in the authorised claim were in large, coloured bold text whereas the first part of the claim, “Zinc contributes to normal …” was in significantly smaller text. We considered the former part of the claim was particularly important to consumer understanding that zinc “contribute[d]” to “normal” fertility and reproduction only. We were, therefore, concerned that because the ad emphasised the latter part of the claim, the way in which the authorised claim was presented contributed to an implication that the supplement had a health benefit over and above contributing to normal fertility and reproduction.
We considered that those aspects of the ad particularly, in combination with the product name and images of the sperm and egg and the smiling couple, resulted in an overall impression that the supplement could assist or increase the likelihood of conceiving, providing a 'boost' in fertility and reproduction to above-normal levels and thus playing a significant role in making any woman who took the product more likely to become pregnant. Because there were no authorised health claims that the product, or any of its constituent substances, could assist or increase the likelihood of conception, we concluded the ad was in breach of the Code.
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 and nutrition claims) and
15.7
15.7
Nutrition and health claims for food supplements must be permitted or authorised as provided for at rule 15.1.1 above. 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.
(Food Supplements and other Vitamins and Minerals).
Action
The ad must not appear again in its current form. We told Vitabiotics Ltd to ensure their ads did not include stated or implied unauthorised health claims in future.
