Background
Summary of Council decision:
Three issues were investigated, of which one was Upheld and two were Not upheld.
Ad description
A national press ad promoted a vitamin supplement. Text stated "MENOPAUSE? This is not HRT Many thousands of women have discovered the comprehensive daily support of Menopace micronutrients. Specially formulated by experts, it is ideal whether or not you are on HRT and can be taken for as long as required". The ad also showed a pack shot of the product on which the text "Formulated for during and after the menopause with vitamin B6 which contributes to the regulation of hormonal activity". The ad also included the claims "UK's No1 MENOPAUSE FORMULA" and "Voted No.1 for the menopause Boots 2012 Awards". Smaller text at the bottom of the ad stated "Vitamin supplements may benefit those with nutritionally inadequate diets".
Issue
The complainant, who believed the ad made the implied claim that the product would treat or alleviate menopausal symptoms, challenged whether:
1. the claim was an authorised health claim on the EU Register;
2. the claim "UK's No.1 MENOPAUSE FORMULA" misleadingly implied efficacy, because he understood that it was based on sales data; and
3. the claim "Voted No1 for the menopause" misleadingly implied efficacy, for the same reason.
Response
1. Vitabiotics Ltd stated that they were aware that marketing communications promoting food supplements were not permitted to imply or make unlicensed medicinal claims. They said it was not their intention to imply that Menopace would treat or alleviate menopausal symptoms and that they had never before received a complaint about the ad, or similar iterations, which had run for over ten years.
Vitabiotics noted that the complaint related to EU Regulation 1924/2006 on Nutrition and Health Claims on Foods, and argued that none of the claims in the ad relating to the menopause could be understood as health claims. They stated that the menopause was simply a stage of life and not a medical condition and therefore that the claim "Formulated for during and after the Menopause ..." was merely an indication of the stage or period of life for which the product was intended and did not indicate that it could treat or alleviate menopausal symptoms. They highlighted that the ad avoided any reference to words such as "comfort", "problems", "symptoms" or "relief" which arguably could lead consumers to interpret the ad, and the product's intended purpose, differently.
In relation to the references to HRT (hormone replacement therapy), Vitabiotics explained that they were frequently asked by consumers whether it was possible to take the product while on HRT, hence they had chosen to include the claims in the ad. They said the claim "... it is ideal whether or not you are on HRT" was an important factual statement and reflected the product's wider directions for use.
Vitabiotics stated that "Menopace" had been a fully registered UK trademark since 1989 and had been in extensive use in the UK since 2005. They believed that the brand name "Menopace" did not imply the product could prevent, treat, or cure disease, but that even if it were to be interpreted as an implied health claim, because it had been in use since 2005, it did not need to be accompanied by an authorised health claim. Regardless of that, Vitabiotics asserted that the ad did include an authorised health claim with the exact authorised wording, "... with vitamin B6 which contributes to the regulation of hormonal activity". They stated that because the menopause was a stage of life that was linked to the regulation of hormonal activity, the claim relating to B6 was simply a health claim and did not imply that the product itself treated disease.
In addition, Vitabiotics stated that the claims "Many thousands of women have discovered the comprehensive daily support of Menopace micronutrients", "It is ideal whether or not you are on HRT" and "This is not HRT", were simply factual statements and did not state or imply that the product was a treatment for menopausal symptoms.
2. & 3. Vitabiotics explained that the claim "the UK's No.1 MENOPAUSE FORMULA" was based on IRi (a market research company) sales data. They stated that the reference to "formula" was intended to mean the particular combination of ingredients within the product, and in the context of the advert, they believed that consumers would understand the reference to "menopause formula" to mean "menopause supplement". They highlighted that if one searched online for "menopause formula", the results only related to supplements, and they did not believe that there were any examples of "menopause formulas" that were targeted at consumers that were not supplements. They provided data compiled by IRi showing value sales and unit sales data for a range of supplements sold in the UK, including competitor supplements for menopausal women.
With regard to the claim "Voted No1 for the menopause", Vitabiotics explained that the it related to a Boots' vitamin award, which was referenced in the ad, and was based on a customer vote. They provided email correspondence between themselves and Boots in support of the claim. They also highlighted that the winner's logo which appeared on the ad had been supplied by Boots.
They did not believe that stating that a product was "No.1" could ever be construed as a statement about efficacy. Instead they believed that the average consumer would understand the claim to relate to brand leadership within the category of nutrient supplements formulated for women going through the menopause.
Finally, Vitabiotics said they would suspend publication of the ad for the duration of the ASA's investigation, and suggested amendments that they considered would resolve both points of complaint.
Assessment
1. Upheld
The ASA noted that under EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation), which was reflected in the CAP Code, only health claims which appeared on the list of authorised health claims (the EU Register) could be made in ads promoting foods, including food supplements, and that marketers must also ensure that they met the conditions of use associated with the claims in question. Health claims were defined as those that stated, suggested or implied a relationship between a food, or ingredient, and health.
We noted the ad included the heading "Menopause?" and the claims "... comprehensive daily support", "Formulated for during & after the menopause" and the authorised health claim "... with vitamin B6 which contributes to the regulation of hormonal activity". We also noted that the ad included references to "HRT", such as "This is not HRT" and "it is ideal whether or not you are on HRT", and considered that, in the context of the ad, consumers might interpret those claims to mean that the product was a possible alternative to HRT, or something that they could take to enhance the effects of HRT. We considered that the overall impression of the ad was that the product regulated hormonal activity for menopausal women and could improve any associated negative symptoms that they were experiencing, and therefore considered that the ad made an implied health claim. We understood, however, that the implied health claim, that the product could treat or alleviate menopausal symptoms, was not authorised on the EU Register. We therefore concluded that the ad was in breach of the Code.
On that point, 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).
2. Not upheld
We considered that consumers would understand the claim "UK's No1 MENOPAUSE FORMULA" to mean that Menopace was the best-selling menopause supplement in the UK. We reviewed the IRi data provided which demonstrated that, at the time the ad appeared, Menopace was the best-selling menopause supplement in the UK, in terms of value sales and unit sales, over a 52-week period. Because we considered that consumers would understand the "UK's No1" claim as a best-selling claim, and the evidence provided was sufficient to substantiate that claim, we concluded that it was not misleading.
On that point, we investigated the ad under 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) and 3.7 (Substantiation), but did not find it in breach.
3. Not upheld
We noted that the claim "Voted No.1 for the menopause Boots 2012 Awards" appeared alongside a "Boots vitamin awards 2012 winner" logo and considered that consumers were likely to understand that the claim related to a Boots' customer poll. We also noted that Vitabiotics had provided correspondence between themselves and Boots confirming that they had won the 2012 Boots "Favourite Menopause Supplement" award. Because we considered that consumers would understand the claim as a consumer preference claim and the evidence provided was sufficient to substantiate that claim, we concluded that it was not misleading.
On that point, we investigated the ad under 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), and 3.7 (Substantiation), but did not find it in breach.
Action
The ad must not appear again in its current form. We told Vitabiotics to ensure their ads did not include stated or implied unauthorised health claims in future.
