GSK-MaxiNutrition is the latest firm to feel the wrath of the Advertising Standards Authority’s (ASA) increasingly stringent interpretation of EU health claim laws. In this case the TV advert had been OK’d by the broadcast advisor, Clearcast. An increasing number of observers are saying the rulings would not stand legal scrutiny as many of the censored claims are so close to approved EU claims under the nutrition and health claims regulation (NHCR).
MaxiNutrition was diplomatic in its response, stating: “The protein in our products has been scientifically proven to help grow and maintain muscles and our advertising was based on these EU approved health benefit claims. The term ‘muscle recovery’ is a widely used expression of these EU approved protein health claims, and is commonly used by the sports food industry.”
One observer said the ASA ruling meant little to firms as by the time they came in, the campaigns had already run their course and made their impact with consumers.
“It’s got its millions of views so goal achieved,” the observer told us.
“Nothing happens to the business following an ASA ruling of this kind unless it is a more serious case, apart from the industry learning what to do next.”
The approved EU claims state protein can contribute to the ‘growth and maintenance of muscle mass’.
Recovery v performance; protein v product
The ASA acknowledged claim wording could and should be flexible but said MaxiNutrition pushed the borderline between performance and recovery too far with claims like, "MaxiNutrition ... helping make you stronger and perform better." and, "MaxiNutrition. You, stronger."
It added: “…we considered the presentation of the claim, ‘MaxiNutrition proteins aid muscle recovery’ attributed muscle recovery to the product alone, rather than to protein in general.”
With the accompanying boxing imagery and muscular microscopy the agency concluded the claims, “were not likely to have the same meaning for consumers as that of the authorised health claims and that the ads exaggerated the health benefit of the product.”
Call for consumer data
Dr Mark J Tallon, managing director of UK Food Law consultancy Legal Foods, pointed out ASA opinions were not legally binding.
“The ASA’s opinion is no more valid than that of the food business,” Dr Tallon said.
“However, if a company accepts that the ASA are a legitimate arbiter of the health claims regulation – despite having no force in the legal enforcement of the regulation – then they should provide not only a defense based on the scope and nuances of the regulation but also support their interpretation of the official wording of a health claim with data.”
“As far as we are aware no company has provide such data – e.g. a consumer survey – and as such this leaves the ASA to make any interpretation it wishes over the wording of a ‘flexed' health claim.”
He added: “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."
The ASA ruling is here.