'Category headings' on websites can count as implied claims for advertising & marketing

The latest Advertising Standards Authority (ASA) adjudication on category headings on a website dealing with 'weight management' implied claims against Holland & Barrett was important in looking at the remit of authority of the ASA and also exactly what could constitute an implied claim on a food product or food supplement for advertising.

The key issues coming out of this matter are:

1. The ASA was a control body for official controls on food under Reg EC 882/2004 - The ASA and CAP (Committee of Advertising Practice) had in place a memorandum of understanding with the Department of Health and Social Care (DHSC) and the Food Standards Agency (FSA)  that the ASA are the established means for the investigation of complaints about the advertising of food. Regulation EC 882/2004 did not preclude self or co-regulation, subject to supervision.
2. The ASA further held its remit does extend to: 
   (A)  Category headings on a website – namely that these did constitute an implied claim; and
   (B)  'On hold' botanical claims – The ASA, while recognising that on hold botanical claims may still be used, adjudicated against those with a negative EFSA Opinion and those without evidence of use in compliance with national provisions before 19 Jan 2007.  Further they looked at the overall general implied claim within the category heading and interpreted this in its’ broadest sense to see whether the ‘on hold’ claim had an equivalent meaning.

  Can ‘Category Headings’ constitute claims?

The question was referred to industry bodies: Was this a navigational tool, dependent on context, a simple signpost that then provided consumers with a breadth of relevant choices of competing and complementary products? Accurate information would then be available at individual product level through mandatory and regulated food information. 

Or; was it a claim about the function of the products contained within that category, which was likely to influence a consumer’s decision to purchase those products?

The ASA maintained the second position despite industry bodies backing the first interpretation. The ASA considered that consumers would understand food supplements placed in the “weight management” category to have the inherent function of helping them to control or maintain their weight, including following weight loss, as opposed to products that would enable the user to undertake other activities that would help them maintain their weight (e.g., fitness clothing and equipment). 

How might ‘On Hold’ Botanical Claims be dealt with?

The ASA next approached the Food Standards and Labelling Focus Group ((FSLFG) made up of mainly enforcement officers).  The position was then maintained as follows:

“The FSLFG considered that the “weight management” category heading was a health claim and that therefore all the products advertised in the category must meet the conditions of use for an authorised weight loss/management health claim. According to the Regulation, to be permitted in marketing communications for foods, including food supplements, slimming and weight control, claims were required to be listed as authorised on the EU Register, being based on generally accepted scientific evidence and well-understood by the average consumer (Article 13(1)(c)). Health claims were defined as those which stated, suggested or implied a relationship between a food, or ingredient and health. For specific health claims that were "on hold" (i.e. filed with supporting evidence by January 2008 but awaiting approval by the European Food Safety Authority (EFSA) and European Commission, as for botanical ingredients), the transitional provisions at Article 28(6) allowed for continued use provided that the claim being used had the same meaning as the “on hold” claim, related to the same active ingredient and the same conditions of use and had been used in compliance with applicable national provisions before the date of entry into force of the Regulations ‒ i.e. that the claims were not misleading and could be substantiated by evidence.” [i.e. 19 January 2007]

The issue therefore then moved to the question:
 
Whether the claim (within the category heading of) “weight management” was likely to have the same meaning for consumers as the authorised or ‘on hold’ claim?

Whilst one of the individual examples was permitted, and one on hold claim might have likely have had the same meaning for consumers as the authorised claim, the ASA went further and considered that ‘weight management’ additionally implied that the product could help ‘maintain’ weight rather than only lose weight or fat.  In other examples, the ASA referenced negative reports and unsubstantiated or inadequate evidence in order to reject the link between claims.

Summary

It is a little like turkeys voting for Christmas to have the ASA, or any court really, interpret against the remit of their own responsibility.  In the Holland & Barrett matter the ASA maintained a firm grip on their authority.

The main finding from this ruling is that category headings may now constitute a claim for each individual product placed within that category.  The implied claim within this category heading will be given the same broad interpretation as we have seen with the use of other health claims.

Further, ‘on hold’ claims have to align with the same meaning, be substantiated, not have negative opinions published and/or have had an application for authorisation of such claims made by January 2008, and that such claims complied with the rules in place prior to the entry into force of the Regulation, that is before 19 January 2007.