This information is relevant for practitioners uploading and setting out information on their practice websites and marketing materials. Practitioner advertising and other public material needs to comply with EU Nutrition and Health Claims Regulation (NHCR) and advertising guidelines as set by individual Member States. These guidelines are very similar across Europe, as the organisations setting these standards all come under one European umbrella organisation known as the European Advertising Standards Alliance (EASA).
The European Advertising Standards Alliance umbrella
The European Advertising Standards Alliance (EASA) exists to “promote responsible advertising by providing detailed guidance on how to go about advertising self-regulation for the benefit of consumers and businesses”.
The Brussels based EASA sets out standards for its network of 54 organisations “representing 38 advertising standards bodies (also called self-regulatory organisations) from Europe and beyond and 16 organisations representing the advertising ecosystem (the advertisers, agencies and the media).”
EASA publishes The Blue Book every 3 years. This is described as : “a comprehensive guide to the self-regulatory and legislative rules governing advertising across Europe.”
The Advertising Standards Authority (ASA) in the UK, and the Advertising Standards Authority for Ireland (ASAI) are national advertising self-regulatory authorities that come under this umbrella. This is the reason why their respective CAP codes (both recently revised) are similar. Also included under the EASA umbrella, are organisations which represent the advertising industry in Europe.
UK: The Advertising Standards Authority (ASA)
In the UK these marketing and advertising guidelines are known as Advertising codes of practice or ‘The CAP Code’. The CAP ‘non-broadcast’ code covers “non-broadcast advertising (eg print, online), sales promotion and direct marketing (eg telesales and email)“. A PDF is available of The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (Edition 12).
The UK government refers to them as ‘rules’, and states that they are ‘enforced’ by the Advertising Standards Authority (ASA). They add “Anyone who thinks advertising rules have been broken can complain to the ASA within 3 months of the advert appearing”, and “If an advert breaks the rules, it may be withdrawn. If the product doesn’t match the description or the advert breaks the law, you could be prosecuted”.
The UK ASA tries to portray itself as a government body, but in actual fact it is a private, limited company. It has relentlessly attacked the natural healthcare sector since its remit was extended to online advertising, targeting CAM practitioners and homeopaths in particular. Disturbingly, most of the complaints have been initiated by a skeptic group known as the Nightingale Collaboration. The ASA has even involved itself in the scientific debate surrounding vaccines and autism, despite absolutely no basis in law or evidence of any relevant scientific competence.
In 2014, hormone health practitioner Alyssa Burns-Hill PhD released a video entitled “Alyssa Spills All”. It highlighted Alyssa’s own experience of unfair treatment by the UK Advertising Standards Authority (ASA).
ASA update on The potential impact of Brexit on advertising regulation.
Ireland: The Advertising Standards Authority Ireland (ASAI)
The Irish Code of Standards for Advertising and Marketing Communications in Ireland (7th Edition) was updated in March 2016.
Practitioner resource: Do your websites and marketing materials comply with EU legislation and advertising and marketing guidelines?
The following piece was written by ANH-Intl for Irish nutritional therapists in June 2016, but it provides a general picture for CAM practitioners in the UK (ASA wording varies slightly in parts) and elsewhere in Europe:
Do your websites and marketing materials comply with EU NHCR regulations and ASAI guidelines?
Are Irish nutritional therapists (NTs) au fait with what we can and cannot say on websites, reports and marketing materials without falling foul of EU regulations, and the recently revised Advertising Standards Authority Ireland (ASAI) Code of Standards guidance? The relevant section of the ASAI is Section 8 on page 58, which is entitled “Food and Non-alcoholic Beverages” This ASAI code also applies to food supplements.
Reduction of Disease Risk Claims
A key point to remember is that NTs cannot state or imply that they can diagnose and treat disease, as per the EU Human Medicinal Products Directive. Claims are disallowed that “state or imply that a food prevents, treats or cures human disease” (unless specifically authorised by the European Commission e.g. under Article 14.1a of the Nutrition and Health Claims Regulation).
Irish NTs may only use authorised health claims in relation to commercial food and food supplement products, as per the EU Nutrition and Health Claims Regulation (NHCR). These can be found on the EU Register at: http://ec.europa.eu/nuhclaims. However, health claims that refer to the recommendation of an association are permitted “if that association is a health-related charity or a national representative body of medicine, nutrition or dietetics”. Irish NTs should also ensure that marketing communications don’t “disparage good dietary practice or the selection of options that accepted dietary opinion recommends should form part of the average diet”. “Claims that state or imply health could be affected by not consuming a food” are disallowed.
Marketing communications “should not suggest or imply that a well-balanced diet needs to be augmented by vitamins or minerals on a regular basis” and “should not suggest that there is a widespread vitamin or mineral deficiency”. In addition, they may not suggest that certain dietary programmes may restore such deficiencies! NTs “should not imply that supplements will guard against dietary deficiency, elevate mood or enhance performance and supplements should not be promoted as a substitute for a healthy diet”.
The ASAI guidance requires that nutrition and health claims in marketing information “should be supported by documentary evidence substantiating that they meet the conditions of use associated with the relevant claim, as specified in the EU Register”.
This summary is just a snapshot, and is by no means complete picture.
Marketing material examples:
The following are actual examples we’ve found on various NTs websites – not naming any names! We hope that our suggested alternative wording will illustrate how you can play with semantics and keep yourself on the right side of the regulatory fence. The trick is to stick with health promotion, wellbeing or authorised health claims – and avoid straying into areas of medicinal function that refer to the correction, restoration or modification of physiological functions, especially through the exertion of pharmacological, immunological or metabolic functions:
“Enjoy dramatic improvement of chronic diseases through optimum nutrition” [Suggested amendment: “Nutritional Therapy can help you to achieve and maintain optimal health and vitality”]
“Nutrition to revert heart disease” [Suggested amendment: “Personalised nutritional support for optimal heart health”]
“Nutritional therapy can be useful for all medical conditions” [Suggested amendment: “Through the use of personalised nutritional and lifestyle interventions, Nutritional Therapy promotes health, vitality and wellbeing”]
“Nutritional therapy involves investigating the cause of any illness or disease”.
[Suggested amendment: “Whilst Nutritional Therapy does not seek to diagnose, treat or cure disease, it is common that during the course of your consultation it will become apparent which areas of your body, and your life more generally, should become the main focuses of attention in the recommended nutritional and lifestyle modification programme. Such personalised programmes aim to help you better achieve and maintain optimal health”]
“I can provide a personalised diabetes diet treatment plan”
[Suggested amendment: “I can help tailor a personalised dietary plan that aims to better support healthy blood sugar balance, which will assist any concurrent medical treatment being supervised by your doctor. However, you should always notify your doctor before making any significant change to your diet or lifestyle, as this may affect any prescription medication you might be on”]
“I can restore function and wellness of mind, body and spirit”
[Suggested amendment: “Nutritional Therapy has a long history of helping people to achieve and maintain optimal wellness of mind and body. In my own practice, I specialise in helping my clients achieve balance in mind, body and spirit”]
“If you have been ill for years, maybe with a chronic condition that you ‘manage’ with decreasing success, I can help”
[Suggested amendment: “Suffering with a chronic condition? Searching for better health? Through the use of personalised Nutritional Therapy programmes, I can offer vital additional support for your underlying health and vitality. Through the focus on food and lifestyle interventions, I can also work with your doctor to help you achieve better health”]
“I can help to remove ‘toxicity’ and/or deficiency— the causes of disease”
[Suggested amendment: “By personalising a Nutritional Therapy programme for your specific needs, I can help you to support normal gastrointestinal health and detoxification, both of which are fundamental to the achievement of optimal health and nutritional balance”]
“Nutritional therapy can alleviate health conditions that include: psoriasis, endometriosis, PCOS, depression, chronic fatigue”
[Suggested amendment: “Nutritional Therapy can offer useful support for optimising the health of the skin, digestive system and organs, whilst promoting better hormonal balance and can contribute to healthy mood and energy levels”]
“I can treat stress/anxiety, depression, fatigue, chronic conditions, musculoskeletal and gynaecological problems”
[Suggested amendment: “Through Nutritional Therapy, I can provide a tailored programme that will help you to support the health of the musculoskeletal system and promote normal mood and hormonal balance, whilst also supporting optimal energy levels”]
This is only a quick-fire summary snapshot, so please refer to the links above for more detailed information. It may also be helpful to read our EU ‘Practitioners’ leaflet.
The case of Frede Damgaard
In 2009, a European Court of Justice (ECJ) ruling occurred which dramatically influenced reporting of independent viewpoints by journalists about the benefits of natural products used in healthcare. It related to criminal proceedings brought by the Danish government, against journalist, Frede Damgaard , regarding “dissemination of information about a medicinal product by a third party acting on his own initiative”. This was considered a breach of European medicinal law (Directive 2001/83/EC), a law designed to protect Big Pharma. It concerned a ‘medicinal’ rose hip product not authorised in Denmark. The case was referred to the ECJ, and their ruling declared that Damgaard was effectively ‘advertising’.
The ‘bottom line’ in the ruling is, as is generally the case in such rulings, the final paragraph, paragraph 29. It says it all and it reads as follows:
“In the light of all the foregoing, the answer to the question referred is that Article 86 of Directive 2001/83 is to be interpreted as meaning that dissemination by a third party of information about a medicinal product, including its therapeutic or prophylactic properties, may be regarded as advertising within the meaning of that article, even though the third party in question is acting on his own initiative and completely independently, de jure and de facto, of the manufacturer and the seller of such a medicinal product. It is for the national court to determine whether that dissemination constitutes a form of door-to-door information, canvassing activity or inducement designed to promote the prescription, supply, sale or consumption of medicinal products.”
As we said in our 2009 article: “Of course, for any government to have legal traction under the terms of the new ruling, the product would have to be licenced as a medicine in at least one Member State, just as Denmark had to rely on the medicinal licence granted by the Swedish government (Norway doesn’t count as it is not part of the EU). But what about other products? Glucosamine is classified as a medicine in Sweden and Denmark—and, let’s face it—high dose variants of virtually any vitamin or mineral you care to think of have been registered as medicines in at least one Member State”.
Susie Ekstrand, legal counsel for Damgaard told NutraIngredients.com :
“This ruling is significant because it means anything written about a product that maybe deemed medicinal in one member state, can be deemed inappropriate and consequences may follow for the author.”