The issue stems from a web page headed "Weight Management", seen on the website that features a number of subcategories. These categories link through to listings for a range of food supplements.
Complaints centre on the belief that the “weight management” heading is a health claim that would be understood to apply to all the products featured within the category.
The challenge therefore questions whether the claim was authorised on the EU Register for each product in that category.
“ASA have no remit to rule on food claims in advertising generally without the advertiser’s agreement,” claims Holland & Barrett in response to the ruling.
“Even if the ASA was authorised to rule on food claims, the claims at issue were website category headings and not advertising under the CAP Code.”
Holland & Barrett adds that all products within the “Weight Management” category could support claims that were either authorised on the EU Register as weight management/weight control claims or listed as “on hold” claims awaiting authorisation relating to botanical substances.
Referring to specific products, Holland & Barrett points to its ‘Nutritional Headquarters Fat Metaboliser’ and ‘Holland & Barrett Super Green Tea.’
According to the retailer, these products contain chromium levels that meet requirements for use of the authorised health claim “chromium contributes to normal macronutrient metabolism”.
Raspberry Ketone Complex
In relation to its product ‘Holland & Barrett Raspberry Ketone Complex,’ they state that they do not make any health claims about the raspberry ketones.
They add that the product contains glucomannan at a level that satisfied the requirements for use of the authorised claim, “Glucomannan in the context of an energy restricted diet contributes to weight loss”.
Upholding the decision, ASA notes the CAP Code had long included rules on food claims, and that revised rules on health and nutrition claims reflecting regulatory requirements were the subject of public consultation in 2009.
The Authority adds that while the claim “chromium contributes to normal macronutrient metabolism” is authorised on the EU Register, they do not consider the claim “weight management” is likely to have the same meaning for consumers as the authorised claim.
“We consider the wording went beyond the authorised claim and implies the product could help maintain weight,” ASA rules.
ASA also conclude that the claim “weight management” does not comply with the Code in relation to the ‘Fat Metaboliser’ and ‘Super Green Tea’ products.
Ketone conforms to code
In reference to the retailer’s ‘Raspberry Ketone Complex’ product, ASA recognises the claim “Glucomannan in the context of an energy restricted diet contributes to weight loss” is authorised on the EU Register and the authorised claim is mentioned on the product listing page.
“We consider that consumer understanding of the claim “weight management” would encompass claims about weight loss and that it did not exaggerate the meaning of the authorised claim.
“We also understand that the product complies with the conditions of use for the authorised claim.
We therefore conclude that the claim “weight management” complies with the Code in relation to the “Raspberry Ketone Complex” product.
Despite this, ASA rules the ads must not appear again in the form complained about instructing Holland & Barrett to ensure they did not use the categorisation “Weight Management” to market food supplements unless they “held evidence that those products were capable of carrying an equivalent health claim that was authorised on the EU Register”.
Commenting on the final outcome, a spokesperson for Holland & Barrett says, “As a responsible retailer, Holland & Barrett regularly reviews all product lines, and the categories in which these fall under, to ensure compliance with any legal requirements and to provide customers with clear and accurate guidance.
"All of the products mentioned by the ASA in their ruling had compositions, which allowed relevant authorised claims to be made in respect of them in relation to fat metabolism or weight loss.
"The term ‘Weight Management’ is a broad term encompassing a wide range of functions and is used as a category heading to help signpost customers.
"The European Food Safety Authority (EFSA) has used the term to include, amongst other matters: fat metabolism; energy expenditure; metabolic rate; and healthy BMI maintenance and our primary Trading Standards authority stated that there was no evidence that the term ‘weight management’ is any way illegal.
"Therefore, we believe that the presentation of our products under the ‘weight management’ category is not misleading to our customers.”