Big facts, no figures – ‘weight management’ food supplement ad gets a grilling from the ASA

In a recent ruling, the Advertising Standards Authority (ASA) upheld a complaint relating to ads for ‘FIGUR’ weight management supplements (Premium Health Europe BV t/a Prima, 19 April 2023). The ad promised weight loss of “4 STONE IN 15 DAYS NO DIET & EXERCISE CLINICALLY TESTED 100% NATURAL NO SIDE EFFECTS”. The marketer’s website made further claims of various health benefits, including “better sleep, better mood […] less anxiety”.

Too good to be true? The ASA thought so, finding that the ad breached the CAP Code’s strict requirements relating to health claims.

The claims in more detail

Weight loss claims relating to food: The claims appeared in a mobile app ad, and on the website of the marketer, Prima. The ASA considered whether the in-app ad (which featured the claim ‘LOSE 4 STONE IN 15 DAYS’) breached the Code by suggesting that users of the ‘FIGUR’ supplement could lose a specified amount of weight within a stated period. It found a breach of Rule 15.6 of the Code, which prohibits health claims referring to a rate or amount of weight loss being made in relation to a food product or supplement.

Irresponsible promotion of weight loss: The ASA also criticised the ad for promoting weight loss in an irresponsible manner. This was contrary to Rule 1.3 of the Code, which requires marketers to ensure that advertising is prepared with a sense of responsibility towards consumers. In particular, the ASA was concerned about the ad’s suggestion that dramatic weight loss could be achieved in a very short timeframe, with “no diet or exercise required”, through supplements alone. By encouraging and normalising potentially unsafe and harmful rapid weight loss methods, the ad was seen as irresponsible.

Unauthorised ‘health claims’: The claimed benefits of the ‘FIGUR’ supplement’s ingredients included (among many others):

“L-Carnitine – accelerates the fat metabolism, and promotes fatty acids to be used as fuel and generate energy”;

“Cayenne pepper – enhances metabolic rate metabolism, while having superior antioxidant […] effects.”

“L-Proline – encourages collagen production and a better muscular recovery time”

Several further claims were also made in relation to the product as a whole, including that “By training the system to use fat as fuel […] FIGUR (R) supports ketosis, boosts energy […] levels, improves sleep”.

Under the Code, only health claims authorised on the GB nutrition and health claims register are permitted in marketing communications for foods. The ASA regarded all of the above claims to be specific health claims, as they suggested a relationship between a food or ingredient, and health. None of the claims were authorised on the GB register. Moreover, the ad made several general health claims (such as ““Helps detox plans” and “Boosts […] vitality levels”) which were not accompanied by specific authorised health claims. As a result, the ad breached the Code.

Disease-curing claims: The ad contained several further claims referring to adverse health conditions (including obesity, anxiety, stress and inflammation), all of which were claimed or implied to be relieved or reduced by using the advertised product. Those claims were found to breach the Code, which prohibits claims which state or imply that a food can prevent, treat or cure human disease.

The ruling

In view of the ASA’s close scrutiny of dubious nutritional claims, it is no surprise that it took a dim view of the multitude of problematic claims made by Prima. The ad was found to breach a total of eight separate provisions of the Code, and Prima was told not to repeat the ad in its current form.

This ruling, although unsurprising, serves as a healthy reminder to advertisers about the strict rules regulating the advertising of food, drink and supplements. Whilst it’s acceptable to draw attention to the nutritional values of food products, only those health claims that are authorised on the relevant register are permitted, and the product’s compliance with the associated use conditions must be substantiated. Notably, claims suggesting that a food or supplement prevents, treats or cures human disease are not permitted under any circumstances.

Marketers of food products should take special care to ensure they do not overstep the strict provisions of the Code, which reflect complex and evolving consumer safety legislation. Rule 15 of the Code reflects the requirements of EU Regulations (which have been retained in the UK post-Brexit) on nutrition and health claims made on foods. Any non-compliance with the Code could, therefore, also be a breach of consumer safety law which could be separately actionable as a regulatory matter.

What’s next?

In response to the ASA complaint, the offending in-app advert was blocked by the third party app developer. At the time of going to press, however, all of the complained-of claims remained on Prima’s own website. If Prima does not comply with the ASA ruling, it is open to the ASA to deploy further sanctions at varying levels of severity depending on the circumstances. In the first instance, the ASA might include Prima’s name and details of the complaint and ruling on their own website, by “naming and shaming” non-compliant advertisers. As a further step, the ASA has the power to place ads against those advertisers to publicise their persistent non-compliance.

The vast majority of advertisers agree to follow ASA rulings, not least because ignoring the rules can have a significant damaging impact to their reputation. However, if there is persistent non-compliance and a lack of co-operation (which may turn out to be the case here, if Prima were to remain non-responsive), the ASA could also refer the matter to other statutory enforcement bodies, such as Trading Standards. At this level, the most severe sanctions could include criminal prosecution and confiscation of financial assets, as well as court orders banning certain activities, revocation of licences and on-the-spot fines.

Advertisers should therefore never assume that the ASA’s rulings can be safely ignored with impunity. Despite its own limited enforcement powers, deliberate disregard for the Code is likely to lead to escalation to other enforcement bodies and much stiffer sanctions.

Co-authored by Beth Wilson, Trainee Solicitor