Advertising under the microscope: Watchdogs flag “unsubstantiated claims” on CBD and vitamins

24 Mar 2020 --- In the age of “fake news,” it is important that consumers are not misled by advertising, with global watchdogs keen to keep companies in line. With this in mind, the UK’s Advertising Standards Authority (ASA) has flagged an advertisement for Easylife Group’s CBD Miracle Pain Patchpatch that made pain reduction claims as an “unlicensed product with medicinal claims.” Across the Atlantic, the US National Advertising Division (NAD) recommended that Church & Dwight Co. discontinue the claim “clinically proven absorption” across all advertising platforms for its vitafusion gummy line of dietary supplements. The advertiser has said in response that it will appeal NAD’s findings to the National Advertising Review Board.

In the case of the ASA ruling for Easylife Group’s CBD Miracle Pain Patch, the advertised product contained cannabidiol (CBD), which the ASA understood might, in certain forms and under certain circumstances, be allowed by legislation. However, the watchdog’s investigation focused only on whether the advertisement in question made medicinal claims for unlicensed products.

A brochure for the company’s brand Positive Health, which carries the product, in a newspaper stated that “The Miracle Pain Patch … gives you complete, fast-acting pain relief for your whole body […] organic CBD designed to penetrate quickly through your skin … Yet is it 100% safe and non-habit forming.” Text inside the brochure stated “Say goodbye to ALL types of pain with the Miracle Pain Patch!” and also claimed it was suitable against migraine pain, back pain, nerve damage, fibromyalgia, joint pain and others.

The complainant challenged whether the advertisement made medicinal claims for an unlicensed product. According to the advertising codes medicinal claims and indications can be made only for a medicinal product that is licensed by the Medicines & Healthcare products Regulatory Agency (MHRA) or under the auspices of the European Medicines Agency (EMA).

The ASA considered that in the context of the advertisement as a whole, consumers were likely to interpret the claims, “say goodbye to all types of pain with the miracle pain patch” with a list of ailments such as “migraine pain, back pain, nerve damage, fibromyalgia, depression and diabetic nerve pain” amongst several other conditions, as a claim to treat those conditions.

In the age of “fake news,” it is important that consumers are not misled by advertising, with global watchdogs keen to keep companies in line. “We considered those were medicinal claims that required the product to be licensed as a medicine. However, we understood that the product did not have the relevant marketing authorisation and because of that no medicinal claims could be made for the product. Because the advertisement made medicinal claims for a product that was not licensed, we concluded that it breached the code,” the ASA notes.

Easylife Group via its Positive Health brand has responded that it would not run the insert again in its current form and would seek guidance before doing so. The company notes that it was never its intention to mislead consumers.

US watchdog NAD on Church & Dwight’s supplement
NAD has recommended Church & Dwight Co to remove the claim “clinically proven absorption” on product labels, the vitafusion website, trade show materials and during video advertisements for its vitafusion gummy supplements. The claim was challenged by Pharmavite, a manufacturer of dietary supplements.

NAD found that many of the disclosures in the challenged advertising do not effectively limit the “clinically proven absorption” claim to vitamins C and D3 in vitafusion products that contain those ingredients. NAD determined that, as a result, consumers can reasonably take away a broader message, namely that the vitafusion products themselves have been tested and that all of their ingredients – not just vitamin C and D3 – demonstrate “clinically proven absorption.”

Although NAD noted that in several places on vitafusion’s website, the advertiser does, in fact, integrate the disclosure into the main claim, in other places on the website, the disclosure is not similarly integrated into or proximate to the main claim. Next, NAD considered whether the evidence in the record was sufficient to support a properly qualified “clinically proven absorption” claim, assuming that the advertiser appropriately limits the claim to vitamins C and D3 in vitafusion products containing those nutrients.

In support of its claim, the advertiser submitted one acute clinical study evaluating a high-dose, single-nutrient formulation of vitamin C and two acute clinical studies (one pilot) evaluating a high-dose, single-nutrient formulation of vitamin D3. In addition, the advertiser submitted expert reports that explained nutrient absorption, as well as validated the proffered studies.

Due to the study findings, NAD recognized it to be undisputed that vitamins C and D3 are absorbed through both active and passive transport mechanisms in the human body, and that high-dose studies may demonstrate the existence of absorption in lower dose products.

However, NAD determined that the vitamin C and D3 studies were not a good fit to support the messages reasonably conveyed by the advertiser's “clinically proven absorption” claim and recommended that it be discontinued.

Church & Dwight stated in response that it “is a strong supporter of the self-regulatory process,” however it “fundamentally disagrees with NAD’s conclusion that the claim ‘clinically proven absorption’ reasonably communicates to consumers the implied message that absorption of vitamins C and D3 occurs ‘at clinically meaningful levels’ or that the challenged advertising making the claim is not substantiated.”

Edited by Kristiana Lalou

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