‘Mindful’ considerations of claims in the CBD and non-alcoholic drinks industry

The ASA has upheld a complaint against Trip Drink Ltd (“TRIP”), a retailer of CBD-related products including canned drinks infused with CBD and magnesium. The complaint against TRIP’s marketing for its ‘Cucumber Mint – Mindful Blend Magnesium’ canned drink was upheld on three grounds related to nutrition and health claims, with the ASA warning the brand against the use of marketing which claimed that food or drink products could prevent, treat or cure human disease – or which used health claims which were either not authorised or which did not comply with the relevant conditions of use.

Background

There were three limbs to the complaint – the first two of which were based on a challenge by a third party operating in the chemistry and pharmaceutical science sector, and the third based on a challenge from the ASA itself – namely:

1. Nutrition Claim: TRIP’s ad featured a “0g added sugar” claim, despite the presence of naturally occurring sugars from fruit juices (grape and apple concentrates);
2. Unauthorised Health Claims: The ad claimed that the drink could reduce serum cortisol levels and made several claims to the drink having health benefits, including that it could “help you feel calm”, and that its ingredients worked “to promote feelings of calm”; and
3. Disease-Related Claims: The ad also included statements that the drink could reduce anxiety and stress, particularly in relation to its ‘Lion’s Mane’ extract.

Outcome

The ASA ruled that all three issues breached the UK Code of Non-broadcasting Advertising (“CAP Code”), specifically in relation to its rules on food and associated health or nutrition claims.

Nutrition Claim: TRIP argued that the fruit juices contained in its drink were included for flavour and not for sweetening purposes, arguing that:

• Its use of a “0g added sugar” claim (which the ASA found to be equivalent with a “with no added sugars” claim) was consistent with technical guidance issued by a trade association;
• A ‘no added sugars’ claim is permitted where products do not contain added mono or disaccharides, with TRIP maintaining that its drink packaging included the required ‘contains naturally occurring sugars’ statement; and
• The drink contained sweeteners such as stevia, which were separately declared on the product’s packaging – which to their mind reinforced the point that fruit juices had not been included for their sweetening attributes.

The ASA commented that while “with no added sugars” claims are permitted nutrition claims on the Great Britain Nutrition and Health Claims Register (“GB Register”), they can only be claimed where a product does not contain any added mono- or disaccharides, or any other food used for its sweetening properties.

The ASA also noted that claims referring to products containing naturally occurring sugars are permitted, however, per the Department of Health and Social Care’s ‘Nutrition and health claims: guidance to compliance with Regulation (EC) 1924/2006’, such claims are to be assessed on a case-by-case basis. This guidance states that the name of the product in question can be an indication of whether the other food, in this case grape and apple fruit juices, is present as a defining ingredient or as a sweetener. TRIP’s drink featured flavours which were not associated with being particularly sweet, and the fruit juices were not listed as defining ingredients in the drink's name. The ASA thus found that the juices were used, at least in part, for their sweetening properties – concluding that TRIP’s nutrition claim did not comply with the conditions of use, in breach of the CAP Code.

Unauthorised Health Claims: The ad’s implication that magnesium can reduce serum cortisol levels and that the drinks are ‘crafted for calm’ were considered by the ASA to be specific health claims for the purposes of the CAP Code. The ASA noted it was implied that the ingredients had beneficial health effects. Such health claims are only permitted if authorised on the GB Register. There was no evidence to demonstrate such authorisation, resulting in a further breach of the CAP Code.

Disease Related Claims: The ASA stated that making claims which state or imply that food or drink could prevent, treat, or cure disease is prohibited by the CAP Code. Using TRIP’s claim “Health Benefits of Lion’s Mane – Reduces Anxiety and Stress” as an example, the ASA concluded that claims relating to the reduction of anxiety would be understood by consumers as suggesting the product could prevent, treat, or cure human disease. The ASA has therefore concluded that such claims also breached the CAP Code.

The ASA ordered that the advertisement not appear again in its current form – and warned TRIP against:

• Making claims that a food or food supplement can prevent, treat, or cure human disease;
• Using nutrition claims that do not comply with the conditions of use associated with the relevant claim on the GB Register; and
• Making specific health claims that are not authorised on the GB Register.

Comment and Implications

This ruling serves as a good reminder to the growing non-alcoholic and wellness drinks industry of the strict regulatory requirements governing health and nutrition claims in advertising. Advertisers should give careful thought at the pre-publication stage to the nutrition and health claims they want to make. Though ‘no added sugars’ and similar claims are popular in the industry, advertisers should be cautious where naturally occurring sugars are present in their drinks, even if the ingredients containing those sugars are used primarily for flavouring rather than sweetening purposes.

When making any claims that imply a relationship between an ingredient and health, advertisers should also carefully consult the GB Register to ensure such claims are authorised and therefore permitted in marketing communications – and that they comply with the conditions of use for any such claims. Being diligent and checking that the asserted claims are authorised before publishing – and that they are fully compliant with any conditions – may reduce the risk of an upheld ASA ruling or other regulatory issues.

Finally, as consumers seek alternative solutions for treating anxiety or reducing stress they may be enticed by ads that imply or directly claim an effective solution for such conditions. Whilst the alternative drinks market is on the rise, advertisers should be careful to never include claims that could lead a consumer to believe the product can treat, prevent, or cure a human disease – which includes forms of anxiety.

Should you have any questions in respect of the above article, the relevant laws and regulations, or any proposed marketing campaigns or messaging – please do get in touch.

This article was co-authored by Natalia Martosinska, Trainee Solicitor