Legal Update - Advertising Food Supplements

Consumer Product Regulatory Law – Advertising of Food Supplements – Health Claims – Sports Supplements – Protein containing products – ASA   

The Advertising Standards Authority (“ASA”) recently upheld its investigations into health claims made in an advert by Glaxo SmithKline trading as MaxiNutrition.

Health Claims made in the Advert

The following claims which were made during the advert by a voice-over were challenged and investigated:

• "MaxiNutrition helps provide your muscles with the proteins they need to recover, helping make you stronger and perform better"; and
• "MaxiNutrition proteins aid muscle recovery".

Authorised Health Claims

In order to make health claims, they must be authorised by the European Food Safety Authority (“EFSA”) and appear on the EU Register. The EU Register includes the following approved claims:

• "Protein contributes to a growth in muscle mass"; and
• "Protein contributes to the maintenance of muscle mass".

MaxiNutrition’s stance was that the health claims made in its advert had been authorised. It contended that the references to “muscle recovery” and “aid muscle recovery” fell within the scope of the approved health claims. MaxiNutrition stated that although not all of its products contain protein, those that contain added protein are in sufficient amounts to warrant the use of the authorised health claims.

Advertising Standard Authority’s Assessment

In carrying out its assessment, the ASA stated that:

• It was not specified in the advert which products the claims applied to and the ASA considered that consumers might be led to believe that the claims apply to the whole MaxiNutrition range, whereas there are some products that do not contain any protein at all and so the claims would not be permitted in relation to these products.
• Health claims did not have to be worded exactly as they appear in the EU Register provided that the claims have the same meaning to consumers.
• The overall impression of the advert (i.e. the visual element of the advert taken together with the voice-over), was that “MaxiNutrition prevented muscle breakdown during a session of hard exercise and allowed users to achieve optimum performance”. In the ASA’s opinion, this did not have the same meaning for consumers as the authorised claims, i.e. it is not the same as “protein contributes to a growth in muscle mass” and “protein contributes to the maintenance of muscle mass”.
• The claim “helping make you stronger and perform better” exaggerated the benefit of the product whilst also not appearing on the list of authorised claims.

The ASA concluded that the advert breached the Code and the advert must not appear again in its current format. For information around this, see the ASA’s website.

For any legal advice and assistance on food supplements, sport supplements or foods you are looking to sell along with any associated nutrition or health claims you are looking to make on your labels, advertising, marketing and promotional material, you may contact us by email [email protected]. Visit http://www.rtcoopers.com/practice_regulatory.php, http://www.rtcoopers.com/practice_food.php or http://www.rtcoopers.com/practice_foodsupplements.php.

© RT COOPERS, 2014. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.