The Advertising Standards Authority (ASA) has upheld a complaint about Holland & Barrett’s website, finding that it used unauthorised health claims.
Despite Holland & Barrett responding to the complaint by saying that health claims did not fall under the ASA’s remit, the authority upheld the complaint and has told the company it must not run it again.
The complaint originated from a web page headed ‘Weight Management’, seen on www.hollandandbarrett.com in October 2017, which featured a number of subcategories. These linked through to listings for a range of food supplement products. Two complainants, one of whom was a former Trading Standards officer, believed the product category heading ‘weight management’ was a health claim that would be understood to apply to all the products featured within the category. They therefore challenged whether the claim was authorised on the EU Register for each product in that category.
The ASA said that H&B had stated that the ASA had no remit to rule on food claims in advertising generally without the advertiser’s agreement. The ASA was not a control body for official controls on food under Regulation EC 882/2004 in order to ensure the verification of compliance with feed and food law, animal health and welfare rules. It also noted that even if the ASA was authorised to rule on food claims, the claims at issue were website category headings and not advertising under the CAP Code. However, in addition to that, the company said that all the products within the weight management category on its website could support claims that were either authorised on the EU Register as weight management/weight control claims that fell under Article 13(1)(c) of Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), or listed as ‘on hold’ claims awaiting authorisation relating to botanical substances.
In its response, H&B highlighted a product called ‘Nutritional Headquarters Fat Metaboliser’; the company stated that the product contained chromium at a level that satisfied the requirements for use of the authorised health claim ‘chromium contributes to normal macronutrient metabolism’. They stated that fat was generally accepted as a macronutrient by various authorities, including the European Food Safety Authority (EFSA). The product also contained green tea extract and cayenne pepper. They said these ingredients were subject to ‘on hold’ claims and provided links to studies on obese people in Thailand and Japan, published in 2007, that they believed supported the claim in relation to green tea.
But the ASA found in its assessment that the CAP Code had long included rules on food claims, and that revised rules on health and nutrition claims reflecting the requirements of Regulation 1924/2006 were the subject of public consultation in 2009. It said the ASA and CAP had in place a memorandum of understanding with the Department of Health and Social Care (DHSC) and the Food Standards Agency (FSA), in which they agreed that the ASA should be the established means for the investigation of complaints about the advertising of food, including in relation to rules that reflected the requirements of Regulation 1924/2006. The ASA took the view that it was entitled to rule on the claims.
In relation to whether the category headings might constitute claims under the CAP Code, the ASA sought the views of four industry bodies: the Council for Responsible Nutrition UK (CRN UK), the European Specialist Sports Nutrition Alliance (ESSNA), the Health Food Manufacturers’ Association (HFMA), and the Proprietary Association of Great Britain (PAGB). CRN UK stated that category headings acted as a form of signposting, helping consumers find the particular product they were seeking. Removing these signposts could be misleading and confusing for consumers, as they would not know where to find what they were looking for.
ESSNA stated that product categories were needed as an orientation tool for consumers, to enable them to explore individual items in more detail. They did not believe that statements about weight loss and slimming in a category heading made a claim about the function of products within the category.
The HFMA stated that category headings acted as signposts for consumers and did not promote the supply of identifiable goods. They believed that categories referring to slimming and weight loss were necessary in order to provide consumers with a breadth of relevant choices of competing and complementary products.
The ASA considered that a statement about weight management, presented in a category heading, would be understood as a claim about the function of the products contained within that category.
In conclusion, the ASA said: “The ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 15.1, 15.1.1 and 15.7 (Food, food supplements and associated health or nutrition claims). The ads must not appear again in the form complained about. We told Holland & Barrett Retail Ltd to ensure that they did not use the categorisation ‘Weight Management’ to market food supplements, unless they held evidence that those products were capable of carrying an equivalent health claim that was authorised on the EU Register.”
An H&B spokesperson told Health Food Business: “As a responsible retailer, Holland & Barrett regularly reviews all product lines, and the categories in which these fall under, to ensure compliance with any legal requirements and to provide customers with clear and accurate guidance. All of the products mentioned by the ASA in their ruling had compositions, which allowed relevant authorised claims to be made in respect of them in relation to fat metabolism or weight loss.
“The term ‘Weight Management’ is a broad term encompassing a wide range of functions and is used as a category heading to help signpost customers. European Food Safety Authority (EFSA) has used the term to include, amongst other matters: fat metabolism; energy expenditure; metabolic rate; and healthy BMI maintenance and our primary Trading Standards authority stated that there was no evidence that the term ‘weight management’ is any way illegal. Therefore, we believe that the presentation of our products under the ‘weight management’ category is not misleading to our customers.”