What level care should be taken when making health claims via celebrities?

ASA Ruling on Nomad Choice Pty Ltd t/a Flat Tummy Tea (13 September 2017)

The facts

Sophie Kasaei, a TV personality, posted a "before and after" style image of herself on Instagram with the caption: "#ad Tummy Game Plan? You know it's @flattummytea. Nothings gonna get you flat the same as this tea will. The excuses are in the past, much like the water weight I used to have."

The images featured Ms Kasaei wearing the same sportswear and holding two sachets of tea one named "ACTIVATE" and one named "CLEANSE". In the left hand image, her stomach was distended whilst in the right hand image her stomach appeared flatter.

The complaints

The EU Regulation No.1924/2006 (the Regulation) only permits claims related to health to be used in marketing communications if they are listed as authorised on the EU register of nutrition and health claims (the Register). The CAP Code reflects these requirements.

There were two complaints, both of which questioned Nomad Choice Pty Ltd t/a Flat Tummy Tea's (NCP's) compliance with the above:

• The complainant challenged the claims which implied that the tea could help with water weight
• The ASA challenged the product name "Flat Tummy Tea".

The response

NCP said they were not aware of the Register or that their product name and advertisement claims would need to be compliant with the Regulation. They also stated that they did not hold scientific data to support their claims that the tea ingredients could help with water weight loss.

The decision

Complaint 1:
The ASA found that the average consumer would interpret Ms Kasaei's caption to mean that the product would enable them to reduce water weight and obtain a flat stomach. In addition, they found that the consumer would interpret the image as a demonstration of the tea's effect.

The ASA further found that consumers would understand the reduction of water weight and achievement of a flat stomach to be beneficial health effects of consuming the product.

As NCP did not identify any authorised health claims on the Register, the ASA concluded that the Instagram post breached the CAP Code.

Complaint 2:

For the same reasoning as above, the health claim implicit in the brand name "Flat Tummy Tea" also breached the Code.

The ASA did note an exemption in Article 28(2) of the Regulation in respect of trademarks and brand names, namely that trademarks and names which convey a health claim but existed before 1 January 2005 are not caught by the EU law. However, "Flat Tummy Tea" was not registered as a trademark before 2005 so that exemption had no application.

Why is it important?

This type of mistake could be very costly. A company in NCP's position would either have to seek EU authorisation or (more likely) change its approach to marketing.

If the complaint had been limited to the first issue, this would not be too damaging as it would just require removing that particular Instagram post. However, where a trademark or name is found to be in breach, the product may have to be recalled and all marketing communications rebranded. Aside from the obvious expenditure and wasted product, there are more subtle costs to consider such as bad press, lost management time, and a potentially ruined relationship with a celebrity endorser. Notably, Ms Kasaei received substantial criticism from various national newspapers and magazines following the incident.

It is also significant that the ASA considered both: (i) the interpretation of the advertisement (ie whether it made a claim on water weight); and (ii) whether that interpretation was a health claim from the perspective of the "average consumer".

Any practical tips?

When it comes to health, err on the side of caution. Though tempting to make use of society's ever-increasing interest in fitness, beauty and nutrition, a small exaggeration or lack of clarity over product advertising could have a disproportionately negative effect.

Take particular care with fixed branding such as names, logos and trademarks (unless registered before 2005). Also remember that images (such as NCP's "before and after" picture) are just as vulnerable to ASA scrutiny as text.

And lastly, always review your branding from the perspective of the consumer. When considering whether an advert makes a health claim, the question is not whether you, your doctor or even the ASA think it is health-related, but whether your average consumer would. This may be particularly pertinent if you are advertising on social media sites and/or engaging celebrities who have a relatively young fan base.