The ad, seen on the London Underground network in May 2017, included the following text: “BIOTIFUL DAIRY’S 2000 YEAR OLD SECRET TO BETTER DIGESTION … Long ago, the people of the Caucasus Mountains discovered a miracle drink that naturally boosted digestion and immunity. They called it Kefir which means ‘long life’. They loved it so much that they kept it secret for 2000 years. Then we came along. You’re welcome.”
The complainant challenged the “long-life” claim, which was subject to Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods (the Regulation), as reflected in the CAP Code (UK Code of Non-broadcast Advertising and Direct & Promotional Marketing).
The ASA challenged the claims “secret to better digestion” and “naturally boosted digestion and immunity,” which were subject to the Regulation, as reflected in the CAP Code.
Company claims Kefir means long life in old Turkish
Bio-tiful Dairy Ltd (Bio-tiful Dairy) said “Long life” was not a health claim; the ad simply stated that the word ‘Kefir’ meant ‘Long Life’ in old Turkish. The company said the ad did not state that Kefir specifically made you live longer.
Bio-tiful Dairy said its product was a natural source of vitamin B2, vitamin B12 and live yogurt culture.
It said the claims in the ad were based on the health claims “Riboflavin (Vitamin B2) contributes to normal energy-yielding metabolism,” “improves lactose digestion” and “Vitamin B12 contributes to normal function of the immune system,” which were authorized on the EU Register of nutrition and health claims made on foods (the EU Register).
According to the regulation, only health claims listed as authorized on the EU Register are permitted in marketing communications. Health claims could be made through the use of images and in the overall presentation of an ad as well as in text. However represented, health claims must be presented clearly and without exaggeration.
The Code also requires that references to general benefits of a nutrient or food for overall good health or health related well-being are acceptable only if accompanied by a specific authorized health claim.
The ASA considered that consumers would understand the claims “Secret to better digestion,” “Naturally boosted digestion” and “Naturally boosted immunity” to mean the product would improve the functioning of their digestive and immune systems.
The ASA therefore considered the claims were health claims for the purposes of the CAP Code.
The ASA noted the advertiser’s view that the claims in the ad were based on the specific authorized health claims “contributes to normal function of metabolism”, “improves lactose digestion” and “normal function of the immune system.”
The authority said it noted the claim “improves lactose digestion” was not authorized on the Register, although there were two authorized claims - one relating to lactase enzyme, and one relating to live yogurt cultures - which stated those substances improved lactose digestion “in individuals who have difficulty digesting lactose.”
The ASA acknowledged the claim “Riboflavin (Vitamin B2) contributes to normal energy-yielding metabolism” and “Vitamin B12 contributes to the normal function of the immune system” were authorized on the Register as suggested by the advertiser.
The ASA considered the claims “secret to better digestion” and “naturally boosted digestion and immunity” did not accurately reflect the meaning of those specific authorized health claims.
Benefits of product
The claims in the ad attributed the health benefits to the advertiser’s product rather than to the substances that the authorized health claims related to.
It also noted the claims for vitamins B2 and B12 related to the “normal” functioning of the body, whereas the claims in the ad implied that the product could improve digestion and immune function.
Furthermore, the ad referred to the product’s ability to improve “digestion” generally rather than specifically to “lactose digestion” in those who “have difficulty digesting lactose” as stated in the authorized claims for lactase enzyme and live yogurt cultures.
The ASA said the advertiser had also not provided evidence that demonstrated its product met the conditions of use associated with any of the authorized health claims.
Ad breached code
Because the specific health claims made in the ad were not authorised on the EU Register and the general health claim in the ad was not accompanied by a specific authorised claim, the ASA concluded the ad breached the Code.
The ASA said it also considered that, in the context of the ad and particularly the surrounding health claims, consumers would understand “long life” to mean the product had general benefits for overall good health and health-related wellbeing, regardless of whether the claim that ‘kefir’ meant ‘long life’ was factually accurate or not.
That claim, the ASA said, should therefore have been accompanied by a specific authorized health claim.
The ASA ruled the ad must not appear again in its current form, and told Bio-tiful Dairy Ltd to ensure it did not make specific health claims unless they were authorized on the EU Register, and not to make general health claims unless they were accompanied by a specific authorized health claim.