The problem claims include: general health claims without a specific authorised claim, health claims which did not meet the conditions of use, unauthorised health claims, unauthorised reduction of disease risk claims, which the food did not meet the conditions of use, claims to prevent, treat or cure human disease and claims that referred to a rate of weight loss.
All of the claims made by the brand were found to be unauthorised and the brand was told not to make such claims unless they were authorised and met the conditions for use.
Kristy Coleman, partner at Greengage LLP, says the ruling highlights the need for a 360 approach when it comes to complying with the complex rules around food law, from product website through to social media.
“Even hashtags are considered when looking at whether health, nutrition or reduction of disease claims are made. It's unfortunately not a defence to say you found it on the internet, others are doing it or that you didn’t want to take any legal advice.”
She adds: “We are seeing rulings of this nature being released weekly, with an increasing focus on food and drink products. In the wake of Covid, many products are seeking to promote 'health' related benefits, some of which are not authorised or are misleading.
“The ASA works on a reactive basis, meaning it's not patrolling marketing but instead relies upon consumer complaints. Competitors are encouraged to resolve issues directly, rather than through a complaint to the ASA, although this often does not happen."
Coleman points out that as well as the risk of enforcement by the ASA of Trading Standards, there are changes in process to the power of the Competition and Markets authority which will mean that non-compliant advertising and marketing will result in potentially greater penalties, such a fine based on turnover or other sanctions.
In response to the ASA’s concerns, Willy’s Ltd provided a description of the product’s ingredients, which included the bacteria acetobacter and lactobacillus, and the minerals calcium, magnesium, iron, phosphorous, potassium and zinc, and explained the circumstances of its manufacture. They said they were waiting on test results to confirm the presence of bacillus amyquicfalans in their products.
They said that as a small business it had been prohibitively expensive to obtain laboratory tests to substantiate the claims made in their advertising, and they had therefore relied in good faith on publicly available information.
They provided links to articles from newspapers, websites and journals to support the claims made in their advertising, adding that if the substantiation provided was deemed unsuitable, they would make necessary changes.
The ASA concluded that although the firm had provided third-party articles in support of the health claims made, only specific health claims authorised on the Great Britain nutrition and health claim (NHC) register (the GB NHC Register) could be made in ads promoting food or drink products. Plus, any authorised health claims made in an ad must meet the associated conditions of use.
Specific health claims
Companies are only permitted to make specific health claims which are authorised on the Great Britain nutrition and health claim (NHC) register.
The ASA lists a number of statements and hashtags used by Willys which it argues would constitute a specific health claim, which therefore must be authorised on the GB NHC Register.
A non exhaustive list of some of the statements ASA took issue with, includes: “Help balance ph in the gut, leading to improved digestion”, “can also help with digestion”, “boost digestion”, “speed up your metabolism”, “#ImmuneSystemSupport”, “boost the immune system”, and “loaded with antioxidants”, “help with memory & cell production”, “great for curbing sugar cravings”,
The ASA also took issue with the use of the word 'adaptogens', arguing: “Some consumers may not be familiar with the term ‘adaptogens’, however, we understood the term was used to describe natural substances believed to help the body respond to stress, and we considered many consumers who were interested in the potential health benefits of products such as apple cider vinegar would have some knowledge of that definition.
“We therefore considered the claim “[…] with adaptogens” would be understood to mean that the product would support the body’s ability to respond to stress, which we considered was a specific health claim.
The authority also takes issue with the statement “Turmeric & Black pepper – when paired together will better the absorption of curcumin” in one advert.
It states: “While the claims did not state which health benefits would be derived from curcumin, we considered the implication was that curcumin provided health benefits and that black pepper, or black pepper and turmeric combined, would improve the body’s absorption of curcumin, leading to greater health benefits. The claims described black pepper, or black pepper and turmeric combined, as having an improved effect on a function of the body (absorption of curcumin) for which there was an implied health benefit.”
General health claims
When it comes to general health claims, such as “gut health”, these must be accompanied by a specific authorised health claim, such as "calcium contributes to the functioning of digestive enzymes”.
In this case, the authority lists a number of statements which constitute a general health claim and which therefore must be accompanied by an authorised specific health claim on the GB NHC Register.
Statements include: “I feel better than I have for years”, “feel the difference to your wellness”, “to help you feel fantastic”, “daily dose of natural goodness”, “I can vouch for the benefits myself, it’s changed my life”, “Gently […] rejuvenating” and “wellness tonic”, “Good gut”, “gut-healthy goodness”, “#GutHealth”, “Live probiotic foods”.
Reduction of disease risk claims
The CAP Code states that only reduction of disease risk claims authorised on the GB NHC Register can be used in marketing communications. Reduction of disease risk claims are health claims that state, suggest or imply that the consumption of a food or one of its constituents significantly reduces a risk factor in the development of human disease such as arthritis or flu, or diseases caused by high blood pressure, chronic inflammation.
For example, the ASA takes issue with the statements “helped me lower my cholesterol”, “I have lowered my cholesterol”, and “reducing cholesterol levels”.
The authority notes that high cholesterol is a risk factor in the development of heart disease and the statements were therefore reduction of disease risk claims.
Coleman explains if you want to claim something reduces cholesterol, you need to use the approved wording and the product needs to include the ingredients relating to that claim.
Weight loss claims
The CAP Code states that health claims that refer to a rate or amount of weight loss are not acceptable when made in relation to a food.
In relation to this case, it states: “We considered consumers would understand the claim ‘I’ve lost 3 stone’ in ad (a) to mean that William Chase had lost three stone in weight as a result of consuming apple cider vinegar. As referenced above, claims that a food could help weight loss were health claims. The claim was therefore a health claim made in relation to a food that also referred to an amount of weight loss. We concluded the claim breached the Code."