The ruling refers to the product Phedra Cut Lipo XT, a two-in-one liquid capsule made by UK firm Ultimate Sports Nutrition (USN) that contains a catechin complex of Camellia sinensis or green tea.
ASA responded to a complaint about USN’s website that used the text “Green Tea - Containing Phytofare, a green tea catechin complex, to support your … fat oxidation”.
Additional offending text includes, “Thermogenic - Green Tea itself inhibits an enzyme involved in the thermogenesis of body fat”.
The Authority ruled the text breached CAP Codes relating to misleading advertising, substantiation, and food supplements, vitamins and minerals and associated health or nutrition claims.
Specifically, the issue was whether USN could use these claims that are currently ‘on hold’ by the European Food Safety Agency (EFSA), who are still unable to confirm the assessment criteria for such claims.
USN stated that EFSA were considering two possible ways to assess such claims, either through scientific evidence or through the historical use of the botanical’s traditional use.
They added that until a decision was made over the assessment of such claims, they could continue to be used.
USN believed that meant that traditional history of use data might be accepted rather than or in addition to randomised controlled trials.
ASA counter argument
ASA countered arguing that under the Regulation, which was reflected in the CAP Code, health claims were defined as those that stated, suggested or implied that a relationship existed between a food category, a food or one of its constituents and health, and that included food supplements.
Only health claims that appeared on the list of authorised health claims (the EU Register) could be made in ads promoting foods, and marketers must also ensure that they met the conditions of use associated with the claims in question.
“'On hold' claims could be used in marketing, provided they were in compliance with applicable existing national provisions,” the UK’s independent advertising regulator said.
“In this case, the CAP Code’s requirements that claims must be substantiated with adequate evidence, including studies that used human participants where relevant and the product contained the same substance, in the same amounts, to which the ‘on-hold’ claim related.”
Research not accepted
ASA referred to scientific evidence provided by USN in support of the text used on the website. However, they deemed the research inadequate as it compared levels of catechin profiles different to those of Phytofare.
The study was also conducted using a 200 mg daily dose of Phytofare, which was double the dose contained in the recommended daily amount of Phedra Cut Lipo XT.
USN had referenced studies regarding the effect of EGCG increasing fat oxidation and energy expenditure, and regarding the effect of EGCG and caffeine delivering a thermogenic response, but did not provide copies of those studies.
ASA were, therefore, unable to assess the robustness of those studies to determine the credibility of the results that had been obtained.
“The evidence was not adequate to substantiate the advertising claims, and the advertising claims did not in any case relate to the same plant parts and/or did not have the same conditions of use as the referenced ‘on hold’ claims,” the ruling concludes.
“We concluded the claims “Green Tea - Containing Phytofare, a green tea catechin complex, to support your … fat oxidation” and “Thermogenic - Green Tea itself inhibits an enzyme involved in the thermogenesis of body fat,” breached the Code.”