Are you Stressed? Food Supplements under ASA Spotlight for Claims around Mental Cognitive State, ADHD & advertising novel foods which are not authorised for sale in the UK

The recent spate of ASA rulings followed intelligence gathered by the ‘Active Ad Monitoring system’, which uses AI to proactively search for online ads that might break the rules.  This shows a much broader coverage by the ASA and indicates a pattern of proactive monitoring even where no complaints are received. 

The majority of the rulings surround the interpretation of use of claims around mental cognitive state and in particular anxiety and stress but also claims about treating ADHD.  The ASA also delved into ingredient lists to identify species of mushroom that may be considered unauthorised novel foods and therefore in breach of the CAP Code for legality.

Underpinned by Regulation (EC) No. 1924/2006 that sets out the legal framework for businesses wanting to make nutrition and/or health claims on their products the ASA CAP Code sets out as follows in relation to health claims on food and food supplement products:

• General health claims could be made in relation to foods only if they were accompanied by a relevant specific, authorised health claim. General health claims were defined as those referring to a general benefit of a nutrient or food for overall good health or health related well-being.
• Specific authorised health claims - only health claims authorised on the Great Britain nutrition and health claims register (the GB Register) were permitted in marketing communications for food or food supplements. Health claims as those that stated, suggested or implied a relationship between a food or ingredient, and health.
• Disease claims - claims which stated or implied a food could prevent, treat or cure human disease and medical conditions including some forms of neurodiversity such as ADHD are prohibited.

A group of 6 ASA rulings were made that may be summarised below:

Disease claims & Anxiety

The ASA held the claim for the “elimination of stress” would be understood by consumers as an implied claim to prevent, treat or cure anxiety.  It would therefore be considered to be a claim that a food supplement could prevent, treat or cure disease and breached the Code.

Additionally, ‘less than’ claims were also found to be implied claims to prevent, treat or cure the disease of anxiety. Namely, ‘less stress’ and ‘less anxiety’ along with ‘help with the effects of anxiety’ ‘my stress levels are finally stable’ and ‘Reduced stress and anxiety’ “reduces symptoms of anxiety and depression”.  Finally, “crush stress”.

Also referenced were “prevent future diseases”, and “clears acne” as claims found to prevent, treat or cure disease, which were prohibited for food and food supplements.

Specific health Claims

“Nootropic” “antioxidant” and “adaptogen” were considered specific health claims.

• “Nootropic” was used to describe substances which enhanced cognitive function.
• “Adaptogen” was used to describe natural substances believed to help the body respond to stress.
• “Antioxidant” referred to the function of a substance on the body whereby it helped to protect cells from oxidative stress.

Claims relating to energy and fatigue

These included “struggling with [...] fatigue” and “increased energy” “improving … energy” “feeling really energised … much more energy throughout the day”  “more energy” and “improve your … energy” “No more mid day crashes” “All-Day Energy” “Calm Energy” and “Sustained energy” “Strengthen muscles”, “fight fatigue”, “Amplify mental awareness”, “Improve mental function” and “enhance memory” “ignite your energy” and “robust immunity” “All-day Energy” “Energy & Stamina” “Zen Energy” “increases energy as it battles fatigue” would be understood by consumers to mean that the supplement would improve energy levels and reduce tiredness and physical and mental fatigue.

The claims relating to focus, memory and brain fog

These included “discover the secret to sharper focus” “I feel so sharp and focused”, “improve focus”, “struggling with memory fog” and “obliterate brain fog”; “Wanting to be more productive”, “stay focused”, “improving brain function”, “more focused and productive” “feeling pretty focused”, “more productive”, “My focus? So much sharper”,  “improve your focus” “Reduced brain fog” “Improved focus” “Mental Clarity” and “Sustained … focus” “known for its potential to support cognitive function, focus, and memory”, would “unlock […] mental potential” and provide “[…] a sharper mind” “sharp and focused”, “Laser Focus”, “Focus & Memory” “Boosts Focus”  “improving focus and concentration”, “destroys brain fog”, and “enhances cognitive ability” would be understood as meaning that the supplement would help cognitive function and mental performance. Those claims related to specific beneficial health effects and were therefore also specific health claims.

Immunity: claims related to bodily function, which included “improving … immunity” “boosts your immune system” and “improved immunity” would be understood as meaning that the supplement would help with the immune system.

Sleep quality –

The claim “contributes to the reduction of tiredness and fatigue” was authorised on the GB Register in relation to both niacin and vitamin B12.  There is however no authorised health claims relating to sleep quality on the GB Register. Claims that included; “Prepare for a goodnight’s [sic] sleep” and have a “deeper sleep” “sleeping really well” and “improve your … sleep” therefore breached the Code.

Exaggeration & ‘Contributes To’:

Any authorised health claim would have to not exaggerate its meaning and also refer specifically to the ingredient rather than the product as a whole.

Authorised health claims must be presented clearly and without exaggeration. Marketers could exercise some flexibility in rewording claims, provided that the reworded claim was likely to have the same meaning for consumers as the authorised health claim. The aim of the rewording was to aid consumer understanding and taking into account factors such as linguistic and cultural variations and the target population.

It was held in Innocent Health Ltd - ASA | CAP the phrasing “contributes to” in the authorised claims was important in conveying their full meaning. It made clear that the nutrient named in the claim was only one of a number of nutrients that were involved in providing the stated beneficial physiological effect. The ASA also considered that in the absence of the wording “contributes to”, consumers were likely to interpret the claim “reduction in tiredness and fatigue” as absolute, and so they considered it exaggerated the meaning of the authorised health claim.

General health claims

General health claims without any specific authorised health claim accompanying them were found to include:

“Well Gummies”, “Refuel your brain naturally”, “promoting a healthy heart”, “#VitaShroomMagic” “youthful vitality”, “peak wellness”, “transform your life today” “unlock a stronger body and state of mind”  “just two of these gummies can transform your life in ways you wouldn’t believe”, “super mushroom”, and “powerful super mushroom”,. “unlock a stronger body and state of mind” which the ASA considered to be a general health claim for the purposes of the Code, because it made a general claim for good health and well-being.  “functional mushroom gummies”, and “Feel Güd gummies” ie the terms “functional” and “Feel Güd”, were also held to refer to a general benefit of the supplement for overall good health or health related well-being.

Novel Foods in Ingredients

Novel foods need to be authorised before they can be placed on the market in Great Britain (GB). The placing of novel foods on the market in GB must be in accordance with the assimilated Regulation (EU) 2015/2283 of the European Parliament and of the Council of 25 November 2015 on novel foods, amending Regulation (EU) No 1169/2011 of the European Parliament and of the Council and repealing Regulation (EC) No 258/97 of the European Parliament and of the Council and Commission Regulation (EC) No 1852/2001 (Text with EEA relevance) (legislation.gov.uk). 

The register of novel foods (Authorised Regulated Food and Feed Products for Great Britain) sets out the established position for a list of novel foods  in relation to use in Great Britain. The register does not replace assimilated Regulation (EU) 2015/2283 which is the legal basis for the placing on the market and use of novel foods.

As part of the ASA rulings against Vitality Greens and Well Gummies the ingredients were examined to identify if there were any unauthorised novel foods. 

It was found that the ingredients list published online and shown on the product packaging in an ad indicated that VitaShroom Gummies included Turkey Tail mushroom (Trametes versicolor). The ASA understood that Trametes versicolor was likely to be considered by the Food Standards Agency (FSA) as an unauthorised novel food that did not have the relevant authorisation for marketing in the UK. Therefore it, and products containing it, should not be sold in the UK.

The ingredients list also indicated that the product contained Cordyceps mushroom, although it did not specify which species. While certain species of Cordyceps were not considered to be a novel food in food supplements, the ASA understood that Cordyceps militaris was considered by the FSA to be likely to be an unauthorised novel food. The ASA noted they had not received confirmation from Vitality Greens as to which species of Cordyceps was included in the product. The ASA then ruled that the ads had the effect of marketing an unauthorised novel food when it was not legal to do so, and concluded Vitality Greens and Well Gummies breached the Code on the point of legality.

This shows a robust position being taken by the ASA in looking into the ingredient listing and applying the FSAs ‘likely’ opinion.  Listing of ingredients would usually be found on packaging and be the remit of Trading Standards however here it falls within the auspices of the ASA due to the online marketing.

24 July 2024 The following rulings were held on Food Supplement products:

Ejec Ventures LLC - ASA | CAP Upheld Internet 24 July 2024

A paid-for Facebook ad made claims that a supplement could eliminate stress and also made unauthorised specific health claims and general health claims.

Innocent Health Ltd - ASA | CAP- Upheld Internet 24 July 2024

A paid-for Facebook ad made claims that a supplement could treat anxiety and also made unauthorised specific health claims and general health claims.

Nowt Ventures Ltd - ASA | CAP- Upheld 24 July 2024

Four paid-for Facebook ads made claims that a supplement could treat anxiety and also made unauthorised specific health claims and general health claims. 

Nutriburst Ltd - ASA | CAP- Upheld Internet 24 July 2024

A paid-for Facebook ad made claims that a supplement could treat anxiety and also made unauthorised specific health claims and general health claims.

Person(s) unknown - ASA | CAP - Upheld 24 July 2024

Two paid-for Facebook ads made claims that a supplement could treat anxiety, made unauthorised specific and general health claims, and advertised a products containing unauthorised novel foods.

Well Gummies - ASA | CAP- Upheld Internet 24 July 2024

Two Facebook ads and a TikTok ad made claims that a supplement could treat multiple conditions including anxiety, made unauthorised specific and general health claims, and advertised a products containing unauthorised novel foods.