Last week the ASA pulled up online supplements retailer Protein World for making unsubstantiated claims. The complainant was Northamptonshire Trading Standards. In the past this traffic has run the other way, with repeat flouters of the advertising code referred by ASA to Trading Standards (TS), the ASA's official legal backstop, for prosecution.
For Owen Warnock, lawyer and partner at international law firm Eversheds, however, this is nothing new: “This is a striking confirmation of a trend that had already become apparent: that the Nutrition and Health Claims Regulation [NHCR] is in reality being enforced by the ASA rather than Trading Standards Departments of local authorities or the courts.”
So why is this happening? One of reasons could be squeezed TS resources.
Tough times
A recent independent report jointly commissioned by the Department for Business Innovation and Skills and the Trading Standards institute itself warned that due to government budget cuts, TS departments were operating with half the number of staff compared to five years ago.
It identified one resultant problem as “unsubstantiated health claims in the food supplements market” and no money to bring these in check.
Corinne Lowe, lead TS officer for food, confirmed to NutraIngredients that this was the case: "Trading Standards Services have diminishing resources [and] reduced resources is likely to lead to reduced enforcement."
But for Matthew Wilson, the ASA’s communications and marketing manager, the TS Protein World referral was not necessarily due to a lack of resources.
“TS referrals of ad complaints to the ASA are based on the fact that we’re the established means for regulating UK ads… recognised by government, courts, industry and other regulators,” he said.
Warnock said that this could simply be better management of all available resources.
“The ASA process is quick and inexpensive and will result in an advertisement being banned if the ASA decide that the NHCR is being transgressed.
“In contrast, prosecution by a TSO [Trading Standards Officer] is time-consuming and expensive and the case has to be proved to magistrates, who will be completely unfamiliar with this complicated legislation.”
Twice is nice, thrice is better?
In addition to this dual policing approach is industry trade group the European Specialist Sports Nutrition Alliance (ESSNA), which sees itself as an industry watchdog.
“ESSNA is the voice of the sports nutrition industry in dialogue with regulators, policy makers, the media and consumers,” says its website.
“[…] It also acts as a “police” to the industry by monitoring and reporting irresponsible companies which flout EU law – putting consumers at potential risk from dangerous products – to the relevant authorities with which it has built strong relationships.”
Although it has no legal power to act upon any breaches, ESSNA invites member of the public to inform it of any non-compliance issues. ESSNA then notifies the company and provides an opportunity to resolve the issue voluntarily. If the company refuses to do so, ESSNA refers the issue onto the relevant authorities.
Since the ASA ruling, ESSNA has also revoked Protein World’s membership, which had been a member since 2014.
‘More straightforward’
But does any of this really matter as long as somebody acts to protect consumers from illegal claims? Wilson said that despite the government report’s dire warnings, policing illegal health had in fact become easier.
“Anecdotally we haven’t seen an increase in the number of unauthorised health claims [since the budget cuts].
“Now that the EU Register of authorised health claims has properly kicked in, advertising regulation in this area is actually more straightforward – the Ad Codes reflect legislation, if a health claim isn’t on the register then it can’t be made/appear in an ad.”
Warnock also said that this protocol of TS referring code breaches to the ASA did not compromise businesses’ rights.
“Food businesses are not deprived of legal protection because if they consider that the ASA has misapplied the NHCR they can apply for a internal review of the decision and if that does not succeed they can apply to the High Court for the decision to be quashed in a judicial review. “
“[…] Overall, it seems to me that given the scarce public resources available to control fair trading, the use of the ASA system makes sense since it is fast and low cost,” he added.