The magazine adverts contained testimonials including one elderly woman who stated: “NOW I CAN SEE AND READ MY MAGAZINES!” which the Advertising Standards Authority (ASA) ruled went beyond the EU-approved claim that vitamin A “contributes to the maintenance of normal vision”.
The ASA has been one of the strictest interpreters of the EU’s nutrition and health claims regulation (NHCR) and has ruled consistently against testimonials it has deemed unauthorised claims.
The formulation also contained the herbal Euphrasia officinalis [also known as eyebright] and Vaccinium myrtillus [bilberry or European blueberry] which do not have EU-approved health claims.
The ASA said the claims were not just exaggerated but implied treatment of disease, in this case age-related macular degeneration (AMD).
“…the ad went beyond claiming that the product could maintain the functions of vision and the retina, and instead implied that the product could improve vision,” the ASA wrote.
“We therefore considered the claims in the ad exaggerated the health claim submitted to EFSA [European Food Safety Authority].”
Treatment of disease claims are forbidden under the NHCR.
“Is this in the interest of consumers?”
New Nordic Health Brands CEO Karl Kristian Bergman Jensen bemoaned the demise of the testimonial.
“In our industry, there is the special EU legislation on health claims which means that consumers’ real opinions about the experience of the products should be regulated and censored by suppliers and retailers when consumers give the products reviews.
“A consumer can easily write a review about a product like Blue Berry saying that he or she is experiencing that their vision is improved after taking the product,” he told NutraIngredients.
“It will then be illegal and this statement must then be censored by the owner of the website. We are afraid that our industry is losing out on one of the great advantages of freedom of opinion and the advantage of peer review that the internet offers. Is this in the interest of consumers?”
In 2010, New Nordic received some negative publicity in Canada for making similar claims, although at that time the claims were protected by Health Canada’s Natural Health Products Directorate.
A crumb of comfort: wording flex
Owen Warnock, partner and food regulation specialist at Eversheds in the UK said the ruling did affirm an important aspect of interpretation of the NHCR.
“One crumb of comfort for the advertisers here, and an important point for all those wanting to make health claims, is that once again the ASA took a pragmatic approach to the use of words which depart slightly from the approved claim wording,” Warnock relayed.
The ASA said “Vitamin A helps maintain a normal eyesight” was an acceptable variation on the approved claim that “Vitamin A contributes to the maintenance of normal vision”.
But Warnock warned “they need to ensure that other words and images used do not convey a message going beyond the approved claim.”
Playing with fire: Claims versus trust
Peter Wennstrom, president and founder of the Healthy Marketing Team consultancy highlighted the complex field claim making had become, and how difficult it is to win and maintain trust in products and claims.
“I think this is a big issue in the supplements/botanicals area where there is such a reliance on using claims to reach consumers, but it’s a bit like playing with fire in the current regulatory landscape, and when you’re caught then the entire brand will lose credibility.”
“The inside out question ‘what can we claim’ should be replaced by the outside in question ‘what will generate trust and purchase for our brand?’”