ASA ruling removes 'virus fighting' drink promo from TikTok
The promotional video for Tonic Health, the UK-based brand selling powdered supplement designed for mixing into drinks, appeared on TikTok on the 16th October 2022 with claims that one of the products could provide immune support that would fight viruses, breaching Advertising Standards Authority (ASA) codes.
The post was featured on the @tonichealth TikTok profile run by the brand’s CEO and founder, Sunna Van Kampen.
The video showed an unnamed person in a shop’s medicinal aisle, making claims that the Tonic Recover will “help your immune system fight back".
In the video, the speaker stated: “Guys here’s a health hack for your immune system, ditch the Lemsip this winter in favour of Tonic Recover.
“What you want to do is flood the body with loads of good vitamins, minerals, and plants. It’s fuel for your immune system to fight the virus.”
The video was removed after a complainant challenged the claims that the product provided “fuel for your immune system to fight the virus”, as it implied that a food prevented, treated, or cured human disease, which is prohibited by the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code). The ruling was upheld by the ASA on the 15th March 2023.
Kristy Coleman, partner at the law firm Greengage LLP, states: “The issue with Tonic’s advertising was that it claimed that the product could prevent, treat or cure human disease, which are claims you cannot make on foods, only licensed medicines.
“This is different from health and nutrition claims as they are simply claims you cannot make and should be avoided by food businesses. There are some claims that allow you to make a reduction of disease risk claim but this has to be authorised on the relevant register.”
Ruling and response
ASA told the brand to ensure that their future ads did not state or imply that their food products could prevent, treat or cure human disease.
While Tonic Health has removed the video, they reported back to ASA that it was a known fact that vitamins and other ingredients contained in Tonic Recover (lemon, ginger, vitamin C, D, and Zinc) help to support the immune system and that the immune system was responsible for fighting back against viruses. They said the claim was just stating a biological fact that could not be denied.
Health claims, CAP code and social media
Companies are only permitted to make health claims in the EU if they are included in the EU Register of Nutrition and Health. Before they can be used in advertising, claims need to be supported by scientific research and go through a rigorous approval process.
The ad in question breached CAP Code, which is a set of guidelines for non-broadcast advertisements, sales promotions, and direct marketing communications, enforced by the ASA. Rules 15.6 and 15.6.2 were broken, which address that it is not acceptable in marketing communications for food products to imply a food prevents, treats, or cures human disease.
Coleman explains: “Health claims made across social media platforms are governed by law in the same way advertisements in traditional formats are, such as magazines, newspapers, etc. All of the social media platforms will have something in their user terms to say that your use of the platform won’t be illegal.
“If a business is making an unauthorised health claim or a health claim for which the product involved does not meet the conditions of use, not only is it breaching the law and therefore the CAP Code but by misleading the consumer, reputation is also at stake.”
On how companies can avoid running the same risk as Tonic Health, Coleman adds: “To reduce the risk of breaching the CAP code and therefore the laws in which it embodies, businesses should be familiar with it and treat all of their marketing, whether traditional or on socials, the same when it comes to compliance with the law. If in doubt, seek legal advice before your campaign goes live.
“It is worth noting that this relates to TikTok - all advertising on socials is covered by the law and CAP code.”