No therapeutic claims or implied imagery: Major pitfalls to avoid when advertising supplements in NZ

The above points were highlighted during a compliance webinar organised by trade body Natural Health Products NZ (NHPNZ).

Speaking at the webinar, Maureen Roberts, adjudicator at Therapeutic Advertising Pre-vetting Services (TAPS), pointed out that the country’s dietary supplement industry currently adopts a self-regulatory system for product advertising and promotion.

The role that TAPS play is to provide a pre-vetting service which assists firms to comply with the Advertising Codes of Practice for Therapeutic Products and Services (ASA).

The following are the pitfalls to avoid and best practices that companies should adopt.

Pitfalls to avoid​

1. No therapeutic claims

Dietary supplements are allowed to make health claims but not therapeutic claims – which are only applicable to medicines.

As such, companies should refrain from the naming of diseases and medical conditions in the advertising of dietary supplements.

Examples of terms that should not be used include “anti-inflammatory”, “pain”, “ache”, “sore”, “diuretic”, “anxiety”, “colds and flu”, “viruses”, “arthritis”, and “cancer” etc.

Mentioning the symptoms of a disease and comparison of the product with a medicine will also breach the advertising legislation, according to Roberts.

She gave the example of Arthrem – a soft gel capsule containing Artemisia annua ​extract in grape seed oil. The product by Promisia Integrative was marketed as a natural dietary supplement for maintaining and supporting joint health and mobility.

Medsafe, a unit of New Zealand’s Ministry of Health (MOH) responsible for regulating therapeutic products, was of the view that the product was intended to be taken for a therapeutic purpose but was being marketed under the guise of a dietary supplement.

The firm subsequently was slapped with nine charges, all based on Medsafe’s views that the product was sold and advertised for therapeutic purposes.

In response, Promisia challenged the classification of whether artemisia is a medicine.

Eventually, the judges determined that the product was medicine, as it described the symptoms of diseases – such as “stiff joints”, “worn joints”, “damaged joints” – in its advertisements.

As of last month, Medsafe has withdrawn its prosecution​ of the company in relation to the product, on the condition that the firm removes the product from the market.

Another case in point was the antibody immunoglobulin.

Instead of mentioning immunoglobulin by name, including IgA, IgG and IgA, Roberts suggested firms to use alternative wordings in the advertising of products containing the substances.

“​TAPS is recommending no mentioning of immunoglobulin by name or individuals names such as IgF, IgG, IgA,”​ Roberts said.

Alternative wordings to use include “supports immune health and intestinal health” and “supports general health and wellbeing”. 

2. Avoid “clinically tested”

Companies should also avoid using the terms “clinically tested trial” and “being proven” on the product label and advertisements, as it would cause the product to be considered a medicine.

Roberts recommended the use of “scientifically studied” and “scientifically researched” instead.

“You probably noticed previously, ‘clinically tested’ and ‘clinically studied’ were allowed previously.​

“We need to remove that, we are changing copy as we go along to ‘scientifically studied’, ‘scientifically researched’,”​ she said.

3. Imagery to avoid

Imagery that implies therapeutic purposes will also breach the advertising legislation.

An example is hemp seed oil.

Roberts pointed out that Medsafe had advised not to include imagery on hemp leaf on the product labels and advertising material.

She added that firms cannot use the term “no THC (tetrahydrocannabinol)” as Medsafe felt that that was misleading. 

This is because while there is no THC, a product may contain other cannabis compounds that could produce therapeutic effects. 

 4. No overpromising of outcomes

Firms should also be careful of using terms that overpromise an outcome.

On the other hand, while firms could include testimonials on its products, they need to be conscious that once a therapeutic claim is made, it will be considered a breach of legislation.

Best practices​

1. Health claims for dietary supplements

When highlighting health claims, firms should use terms such as “support”, “normal”, “soothe”, “claim”, “regular”, and “nourish”.

Roberts pointed out that the claims needed to be supporting the normal operation of a physiological process and normal health.

“​A good idea is always to write copy in the positive tense, we see a lot of copies talking about problems. For example, if you have this problem, this product can support [the alleviation of the problem].​

“The problem is if you get into that problem solution scenario, again, you are getting into implied therapeutic purpose and crossing the boundary into that problematic area and considered to be a medicine,”​ she said.

As such, claims such as “preventing”, “alleviating”, “curing”, “reducing” or “terminating” should be avoided.

2. Stages of life

Firms are allowed to talk about their products in relation to different stages of life.

However, they should not describe the symptoms associated with it.

Using menopause as an example, Roberts said firms could only make health claims such as “supports normal temperature balance” instead of “hot flushes”.

They could also use terms such as “balancing the body's natural response to hormonal changes”, “useful for the support of premenstrual period”, and “supports calm mood”.

COVID-19 ​

While there is no legislation change to dietary supplements in relation to COVID-19, there are certain imagery that firms should avoid in advertisements.

“We have been given some guidelines from Medsafe saying that images of people with cold and coughing for natural health products need to be removed and going back to work imaging was in conflict with the government's instruction,”​ Roberts said.

Country of origin labelling ​

It is not mandatory for dietary supplement to state the country of origin on the labelling.

It is also not mandatory to have the trading name, business address of manufacturer, seller or packer on the labelling.

This is according to John Barker, principal at John Barker Law, who also presented at the webinar.

Although there is a new legislation on country of origin labelling underway, he said it appeared to be limited to single component fresh foods, and so, it was unlikely that most dietary supplement would be affected.

On the other hand, the fair-trading act will apply on all dietary supplements that has made the claim 'made in NZ'.

The act mandates that​ all claims used must not be false, misleading, or deceptive. The claims must also be substantiated with evidence at the time the claims were made.