A recent Advertising Standards Authority decision highlights the danger for a brand that uses a claim in its name. The adjudication concerned a Facebook post by the Not Guilty Food Company Limited trading as Skinny Food Co, which promoted their suggestively named product, “Skinny Spices”. This issue is particularly common for weight loss and health related products, but the CAP and BCAP Codes apply to claims in product or company names just like any other. Consequently, they must comply with the Codes in relation to substantiation, harm and offence, and compliance with the rules for Nutrition and Health Claims.
The Skinny Food Co ad appeared in June 2020, featuring a man holding four “skinny” spice mixes…aptly targeting our lockdown body woes. The complainants claimed that “Skinny Spices” breached the CAP Code in relation to general health claims, specific health claims and was, in any case, a non-permitted nutrition claim.
One issue was investigated and upheld, whilst two of the issues were informally resolved because the relevant ads had already been withdrawn or were agreed to be amended to reflect the ASA’s advice.
The name “Skinny Spices” was used alongside a persuasive caption which stated, “Natural Ingredients”, “Enhances Flavour”, “Vegan”, “Zero teaspoons of added sugar” and “16 different flavours … Which one will you pick?”.
Skinny Food Co argued that their products were labelled as “Skinny” as they were lower in fat, sugar and calories than products of a similar sort in the UK market. They also said that the term “Skinny Spices” had been registered by them as a trademark in order to reflect these advantages, but that the products were not being marketed as ‘weight loss’ products.
So how does a twenty-first century, body-image focused consumer therefore interpret the word “skinny” in the name of a product? The ASA sought to answer this all-important question via a panel composed of members and policy officials from the Food Standards and Information Focus Group, the Business Expert (Food Standards and Labelling) Group and the Primary Authorities Supermarkets Group.
The result…? Consumers were highly likely to interpret “skinny” in the brand name “Skinny Spices” to mean the product would help to maintain or lose weight. It was therefore a health claim for the purposes of the CAP Code.
Why did this name cause so much pain?
Firstly, there are two types of health claim, a “general health claim” and “specific health claim”. A health claim is any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health. In this scenario, the supposed health benefit was weight loss or maintenance.
A rule of thumb is that you can make a general health claim in connection with a food product, provided that (a) it is accompanied by an authorised specific health claim, and (b) the product meets the conditions of use of that accompanying claim; both of which are specified in the EU Register of nutrition and health claims made on foods.
None of the Skinny Spice products met the conditions of use to carry such a claim.
Secondly, spices tend not to be high in sugar or fat anyway. Who would replace the Dark Chocolate Hob Nobs with spices as a treat in snack cupboard? So even if the claim was interpreted as a health claim, it would still be a non-permitted nutrition claim because the components of a Skinny Spice would produce a negligible nutritional benefit compared to regular versions of the spice. In short, the spice must contain a significant quantity of a particular substance to produce the physiological effect of weight loss or maintenance, rather than just having less sugar than the same products in the market.
How to avoid the pain?
A few quick tips to avoid your product’s name leading to similar pain:
You must hold documentary evidence to show that the claim is authorised and that your products meet the conditions of use for the various claims you are making;
Ensure that your product claims are presented clearly and without exaggeration. There is flexibility for the wording of health claims, but this is to be considered in line with the Department of Health and Social Care’s guidance here; and
Be cautious…consider the ingredients and composition of your products and the quantity of the food and pattern of consumption required to obtain the claimed beneficial effect.
So what now for the product name?
The Action section of the adjudication says "We told Not Guilty Food Co Ltd not to use the name “Skinny Spices” in relation to any product unless the product contained significant quantities of a substance that would produce the physiological effect of weight loss or maintenance and for which there was an authorised health claim relating to weight loss or maintenance." We have added the emphasis, but the point is clear: It is very difficult to see how the Not Guilty Good Co Ltd will be able to avoid a complete re-brand. As things stand, their website still uses the Skinny Spices brand, but the decision was only published a few weeks ago. It will be interesting to see whether they change the branding and if not, what further action will be taken by the ASA.
Thank you to my colleague Annabel Lindsay for her assistance in drafting this post.
"....the trade marked brand name “Skinny Spices” was not accompanied in the ad by any authorised health claims relating to weight loss or maintenance, and as such, we considered the ad breached the Code."