Menopause health claims on foods

Today, 18 October, is World Menopause Day; a day aimed at raising awareness and highlighting the support options available for improving health and wellbeing, particularly as it relates to the effects of the menopause.

3 out of 5 women between the ages of 45-55 experience menopause symptoms.  Symptoms – of which there are over 30 - can be long term and debilitating. 

Foods that can make a health claim have a commercial advantage and those consumers suffering menopause symptoms would represent a significant target for marketing. However, there are specific requirements that need to be met.

Health Claims

“Health” claims on foods are those which refer to a relationship between a food or ingredient and health. The rules on health claims apply to claims which suggest or imply a relationship between food and health, not just explicit claims. Marketers should be careful when preparing marketing communications for foods and food supplements because the scope of the definition of a health claim can in practice be quite broad; ads will be judged on the likely interpretation of the claim by consumers, not the advertiser’s intent in making it.

Only health claims listed as authorised in the Great Britain Nutriton and Health Claims Register, GB (NHC) Register , or claims that would have the same meaning to the consumer, may be used in marketing communications.

Kim Constable Ltd t/a The Sculpted Vegan/Menopause Shred Kim Constable Ltd - ASA | CAP (5 October 2022)

The UK's Advertising Standards Authority (ASA) recently upheld complains against The Sculpted Vegan/Menopause Shred.

Testimonials not sufficient substantiation

The ASA stated it was necessary to ensure that Kim Constable t/a The Sculpted Vegan/Menopause Shred did not make claims as to the efficacy of any of their programmes, including the use of testimonials, unless they held adequate evidence that substantiated those claims.

The ASA considered consumers would interpret the claim “I’ve hacked the precise science of fitness for menopausal women” to mean that Kim Constable had medical or scientific knowledge regarding the fitness of menopausal women. They considered that consumers would understand it was specific knowledge of the menopause that was used in the development of the Menopause Shred programme. The ASA therefore considered consumers would understand from the claims, “Get rid of all water weight and bloating”, “reduce hot flashes [sic] by 50%” and “the menopause diet makes you lose all the water weight and the bloating disappears”, that by following the Menopause Shred plan, they would be able to reduce the stated difficult symptoms experienced by women during menopause.

Given the objective nature of the claims, the ASA expected to see robust evidence to substantiate them, most likely consisting of rigorous trials on menopausal women. They acknowledged the testimonial evidence had been submitted, but considered it did not constitute sufficient evidence to substantiate the claims. Sculpted Vegan, the Menopause Shred was based on the principles of a programme that was not specific to the menopause, and it was therefore not clear how those principles related to the stated symptoms and was not adequate substantiation and therefore misleading.

Medical Treatment

The ASA stated the importance of not making claims that discouraged the essential treatment for a condition for which medical supervision should be sought.

The CAP Code stated that marketers must not discourage essential treatment for conditions for which medical supervision should be sought. Advertisers must not offer specific advice on diagnosis of or treatment for such conditions, unless that advice, diagnosis or treatment was conducted under the supervision of a suitably qualified medical professional.

The ASA considered that the claims relating to menopausal symptoms, specifically hot flushes, would be interpreted by consumers to mean that the programme could reduce those symptoms. It was noted that support for the programme was provided via Facebook coaching groups and at times involved direct support from Ms Constable. However, the ASA did not receive any evidence that those involved in the coaching groups or Ms Constable herself were suitably qualified health professionals. In addition, it was considered the references to those symptoms could discourage consumers from seeking essential treatment under the supervision of a suitably qualified health professional.

Specific weight loss claim prohibited

Finally, the ASA told Kim Constable t/a The Sculpted Vegan/Menopause Shred not to make claims that people could lose precise amounts of weight within a stated period.  The CAP Code required that marketing communications must not contain claims that people could lose precise amounts of weight within a stated period.

Checklist for Adverts making a health claim or implied health claim

• Any general or implied health claim must be accompanied by a specific authorised health claim health claim as listed in the GB NHC Register;
• The conditions for use of this claim as specified in the Register must be met;
• If relevant, the nutrient the claim has been authorised for should be referenced;
• No exaggeration
• To present the claim clearly and not to change the meaning of the claim for the consumer but rather any change to the claim must be an aid to understanding.
• Be aware of the effect of any graphics and the entirety of the advert/packaging/labelling in whether they influence the interpretation of any wording of the claim or understanding of the consumer
• Care should be taken in any reference to the word ‘normal’ - Taking an authorised health claim which refers to “normal function” and rewording it to refer to “improved” or “increased” function is likely to be seen as exaggerating the claim.
• Provide any additional information as required by the conditions of use of the claim. Ads will need to inform consumers how much of the product they need to consume in order to achieve the intake of the relevant nutrient. For example, the ASA ruled that ads for a chewing gum did not make clear that four pieces of the product were required to be consumed in order to achieve the intake of thiamine necessary to make the relevant claim (LA Muscle Ltd, 31 October 2012).
• Make clear any recommendations on quantity and take care not to make the consumer believe that

Please also see Food: Health claims - ASA | CAP

Nutrition and health claims cannot be made if they:

• are false, ambiguous or misleading
• cause consumers to doubt the safety or the nutritional adequacy of other foods
• encourage people to eat excessive amounts of food or suggest that it is okay to do so
• state, suggest or imply that a balanced diet cannot provide sufficient nutrition
• refer to any change in bodily functions that could cause or exploit fear in consumers

If any advice is required for the making of health claims on foods please contact Jessica Burt of Mills & Reeves LLP.