ASA finds Amazon in breach of CAP Code
Amazon has been challenged over its use of a web page heading "Slimming Aids & Weight Loss" which was reported in use in December 2017 and featured a number of food supplement products. The ASA challenged whether the product category heading was a health claim that was authorised on the EU Register for each product listed in the category.
Amazon Europe Core Sarl said that category headings could operate as signposts allowing customers to navigate through the website. However, its data showed that customers used search and other features to navigate to the detail page for a particular product and make purchase decisions at a product level. Amazon said that its category headings did not represent product information and were not directly connected with the supply of transfer of goods. They considered that category headings on the website were equivalent to in-store point of sale material which was not subject to the CAP Code, and it was therefore inconsistent for them to fall under the remit of the CAP Code.
The ASA sought the views of four industry bodies: the Council for Responsible Nutrition UK (CRN UK), The European Specialist Sports Nutrition Alliance (ESSNA), the Health Food Manufacturers' Association (HFMA), and the Proprietary Association of Great Britain (PAGB).
The complaint was upheld with ASA stating that a statement about weight loss, presented in a category heading, would be understood as a claim about the function of the products contained within that category which was likely to influence a consumer's decision to purchase.
The introduction to the CAP Code stated that it covered "advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites ... that are directly connected with the supply of transfer of goods. The ASA noted that the category heading "Slimming Aids & Weight Loss" appeared on Amazon's own website and made claims about the function of the products contained within the category that it considered were likely to have an impact on a consumer's decision to purchase those products. It considered that the claim fell within the remit of the CAP Code.
According to Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), only health claims listed as authorised on the EU Register were permitted in marketing communications for foods, including food supplements. Health claims were defined as those which stated, suggested or implied a relationship between a food, or ingredient, and health. The ASA considered that consumers would understand the claim "Slimming Aids & Weight Loss" to imply a relationship between the food supplements in the category and a benefit to health; specifically that the supplements could aid or cause slimming/weight loss. Therefore the ASA expected to see evidence that all of the food supplements within the category met the conditions of use to carry a health claim that was authorised on the EU Register and that would be understood by consumers as equivalent in meaning to "Slimming Aids & Weight Loss". Because Amazon had not provided any evidence that was the case, the ASA concluded that the claim was misleading.
Amazon Europe Core Sarl was told to ensure that it did not place food supplements in the "Slimming Aids & Weight Loss" category unless it held evidence that those products were capable of carrying an equivalent health claim that was authorised on the EU Register.
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