The ASA this week judged that three complaints about a Healthspan catalogue should not be upheld.
Essentially, the ASA found that Healthspan’s advertising did not breach the CAP Code as the words the complainant objected to were not words in the English language.
While the word “Optiflex” might make you think of optimum flexibility, the ASA have ruled that this made-up word can be used as a brand name, is not misleading, and does not breach the CAP Code (ditto “Synergex”).
The Advertising Standards Authority seem to have decided that made-up words used as brand names do not breach the CAP Code, but I wonder if they might be in breach of other regulations.
The Nutrition and Health Claims Regulations [PDF] state in the introduction that:
This Regulation should apply to all nutrition and health claims made in commercial communications, including inter alia generic advertising of food and promotional campaigns, such as those supported in whole or in part by public authorities. It should not apply to claims which are made in non-commercial communications, such as dietary guidelines or advice issued by public health authorities and bodies, or non-commercial communications and information in the press and in scientific publications. This Regulation should also apply to trade marks and other brand names which may be construed as nutrition or health claims.
The Regulations also state in Article 1.3 that:
A trade mark, brand name or fancy name appearing in the labelling, presentation or advertising of a food which may be construed as a nutrition or health claim may be used without undergoing the authorisation procedures provided for in this Regulation, provided that it is accompanied by a related nutrition or health claim in that labelling, presentation or advertising which complies with the provisions of this Regulation.
I’ve contacted Trading Standards to see whether they think that such brand names might breach the Nutrition and Health Claims Regulations.
ETA, 9th March
Have now had a phone call from Consumer Direct / Trading Standards and this is apparently a “grey area”, there isn’t much guidance, and it looks like OptiFlex is just on the right side of the law. For completeness, here are the emails I had in response to my query:
Thank you for your message. Consumer advice and information in West Yorkshire, is now provided by Consumer Direct [Yorkshire and the Humber]. Consumer Direct is a telephone and online consumer advice service that is supported by local authorities in the Yorkshire and the Humber region, and by central government.
To contact Consumer Direct, please call on 08454 04 05 06 (Minicom users should call on 08451 28 13 84) – Opening hours are Monday to Friday 8am to 6:30pm and Saturday 9am to 1pm.
To e mail Consumer Direct, please visit http://www.consumerdirect.gov.uk/contact?action=complain and select the Yorkshire and the Humber Region.
A wide range of consumer information and advice is also available online from the Consumer Direct website at http://www.consumerdirect.gov.uk.
Please note that your message has not been forwarded.
Thank you for your enquiry to Consumer Direct dated 2nd of March 2011. Your reference number for this case is[…] and should be quoted in all further correspondence regarding this case.
In order to be able to refer the matter to the relevant Trading Standards I would appreciate it if you could forward your address details and a daytime telephone number where you can be contacted. This is to allow Consumer Direct to gather further information from you which will assist us in offering you a resolution to this matter. Our telephone number and opening hours are detailed below.
If we do not hear from you within 7 working days we will assume that your complaint has been resolved and the case will be filed for information only.
Thank you for your enquiry
[Consumer Direct, email #1]
Thank you for the information. The matter has been referred to Trading Standards. You should receive a callback within 5 working days.
[Consumer Direct, email #2]