After the TV and Youtube claims were quashed by the ASA GSK-MaxiNutrition requested an Independent Review which led to Sir Hayden actually hardening the agency’s position around the crucial point that the ad had claimed muscle repair when the approved European Union protein health claims referenced only muscle growth and maintenance.
The initial ruling stated: “We understood the authorised claims ‘Protein contributes to a growth in muscle mass’ and ‘Protein contributes to the maintenance of muscle mass’ related to increasing muscle mass and maintaining it; rather than repair during hard exercise or recovery after it.”
Sir Hayden’s independent review, which involved the consultation of experts from within the ASA and none from the UK Department of Health, added, “we considered that, in conjunction with visuals showing muscle repair and successful performance, the additional text ‘helping make you stronger and perform better’ exaggerated the benefit of the advertised product as it implied the product could prevent and/or repair the muscle breakdown caused by hard exercise to achieve optimum performance.”
“We therefore considered the reworded claims were not likely to have the same meaning for consumers as that of the authorised health claims.”
Standards of evidence
Commenting on the initial ruling, Dr Mark J Tallon, managing director of UK Food Law consultancy Legal Foods, highlighted the difficulty in substantiating claims amid the ASA’s literal readings of the EU nutrition and health claims regulation (NHCR).
“As businesses become increasingly aware of the rigid interpretation the NHCR taken by the ASA and its incorporation into the [advertising] code they must now consider what evidence they hold to defend such a claim, be it legal, consumer based or other.”
“Similarly, working in close harmony with their local trading standards officer either under a home or primary authority can also afford additional protections."
Sir Hayden is a life-long civil servant who has served in senior positions in the Home Office, the European Commission, the Cabinet Office and the Treasury before heading two Departments as Permanent Secretary – the Department for Culture, Media and Sport from 1992 to 1998, and the Lord Chancellor’s Department (now the Ministry of Justice) from 1998 to 2004.
The updated ASA ruling is here.
After publication a Maxinutrition spokesperson got in touch to clarify that the firm had sought an amendment of the initial ruling, not its rebuttal.
"GSK did not seek to overturn the ASA Council’s decision but merely asked the ASA’s Independent Reviewer, Sir Hayden Phillips, to consider amending the wording of the previous adjudication which we considered to be ambiguous," she said.
"We are pleased to report that Sir Hayden agreed with GSK and recommended that the ASA Council replace the ambiguous wording with our suggested wording. The ASA Council has now approved the amended adjudication hence its republication yesterday."