The ASA challenged both Amazon and Protein World on whether product category headings and specific sections of their websites dedicated to products were health claims and whether each product listed in the sections were authorised on the EU register.
The UK agency specifically asked whether ‘Weight Loss’ and ‘Weight Loss Products’ sections on the Protein World website contained only authorised products, while issuing the same challenge to Amazon regarding its ‘Slimming Aids & Weight Loss’ section.
In both cases, it 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).
In its response to the ASA, ESSNA stated that product categories are needed as an orientation tool for consumers, to enable them to explore individual items in more detail – adding that it does not believe statements about weight loss and slimming in a category heading constitute a claim about the function of products within the category.
Furthermore, ESSNA said that ‘appropriate and accurate’ information on products within the different categories was available on individual product pages.
Meanwhile the PAGB noted that while there are circumstances where a category heading could be interpreted as a claim, often it functions as a straightforward navigational tool.
It added that the heading “Weight Loss” could cover products including books, sporting wear and other wellbeing products intended to support weight loss, and in that context the heading could be considered a simple sign post.
Despite arguments to the contrary from each association, the UK enforcement agency concluded that even when presented as a category heading, statements relating to weight loss would be understood as 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.”
“We considered that consumers would understand food supplements placed in the “weight loss” category to have the inherent function of helping them to lose weight, as opposed to products that would enable the user to undertake other activities that would help them lose weight (for example, fitness clothing and equipment),” the ASA said – adding that medical devices and medicines included in such a category would need to be assessed under the relevant rules for each product type.
In both cases the ASA asked Amazon and Protein World to ensure that they did not place food supplements or food products in categories relating to weight loss and slimming unless they have evidence that the products are capable of carrying an equivalent health claim that is authorised on the EU claims register.
Adding to consumer confusion?
“A ‘weight management’ website heading can include a range of food supplements, medical devices, medicines, low-calorie foodstuffs, herbal remedies and even books; the regulatory framework for this range of products is varied, with many claims still ‘on hold’ within the EU register,” said the HFMA.
The association added that responsible retailers within the industry spend ‘a great deal of time and energy’ complying with regulations on product promotion set by the European Food Safety Authority (EFSA) - and that accurate information, in the case of food supplements, will always be available at individual product level to ensure consumer understanding.
“No other European body or member state that we are aware of has come to this conclusion, and we are concerned that this ruling will only add further consumer confusion when shopping with online retailers attempting to operate in a responsible way,” it added.