ASA ruling on ZOE Ltd: ultra-processed food claims come to the supplements market

The ASA has upheld a complaint against ZOE Ltd, a science and nutrition company, over a Facebook ad promoting its “Daily30+” supplement.  

The ad had the following claim, “This is a supplement revolution. No ultra-processed pills, no shakes, just real food”, which the ASA determined implied the product did not contain any ingredients that consumers would interpret as ultra-processed when that was not the case and was therefore likely to mislead.

ZOE Ltd argued that the supplement was made from whole foods and was therefore not comparable to typical ultra-processed supplements on the market. However, the ASA concluded that the evidence ZOE Ltd provided did not sufficiently substantiate the fact that the supplement contained no ultra-processed ingredients as the claim would be interpreted by consumers. The ASA emphasised that comparative or absolute claims about processing must be evidence-based and not open to misinterpretation.

This ruling is illustrative of the challenges faced by food and supplement businesses when navigating the use of “ultra-processed” in consumer comms and advertising.

There are some working legal definitions around what “ultra-processed” means such as the NOVA classification used in the House of Lords Food, Diet and Obesity Committee report “Recipe for health: a plan to fix our broken food system.” This stated that UPFs were typically calorie-dense foods with few valuable nutrients that lacked fibre, contained high levels of unhealthy fats, refined sugar and salt, and whose ingredients had been altered. It was based on the NOVA classification system, which was not designed to be applied to individual ingredients, but rather an entire product.  

Despite this working definition being used by industry, the ASA held the consumer perception of UPFs was not likely aligned with these classifications or definitions, and rather applied their own interpretation of consumer perceptions.  

The ASA ruled that consumers would understand “ultra-processed” as in some way implying a health characteristic as well as in meaning minimally processed. The advert also referenced ‘whole foods’ and this was found by the ASA to further amplify these implications.

The ASA held at least two ingredients in the food supplement, chicory root inulin and nutritional yeast flakes, were not whole foods and had been through more than a minimal level of processing such that consumers would consider them to be UPFs.

This ruling clarifies the point that companies must avoid absolute or comparative claims in their advertising that can not be properly substantiated.

For food and supplement brands, especially those operating within the health and wellness market, this ruling is a timely reminder to use the term "ultra processed" with care when communicating to consumers. In particular:

• A careful assessment as to the nature of the processing is needed, this needs to take into account consumer perceptions about what is or is not highly processed.
• Avoid terms that might suggest actual or implied health benefits, unless these can be lawfully made in accordance with the applicable regulation on health claims.
• Ensure all claims can be substantiated with clear and sufficient evidence and with reference to how the consumer would understand the term "ultra processed" in the context in which you are using it.

At Mills & Reeve, we have the expertise to support food and supplement businesses in navigating the complexities of regulatory compliance. Whether you are launching a new product or advertising campaign, refreshing your marketing strategy or looking for general food law support, our Food & Agribusiness team can help you stay compliant whilst standing out in a highly competitive market.