Dutch social and political science professors have presented a case study on marketing a functional food in the European Union (EU) to demonstrate that nontextual marketing, which the European Food Safety Authority (EFSA) is apparently ill-equipped to regulate, plays a larger role in consumer purchasing decisions than textual product messages. Herman Lelieveldt and Cris Boonen, “EU Health Claims Regulation and the Marketing of Functional Foods: A Regulatory Void?,” 3 European Journal of Risk Regulation 577 (2012).

They considered a marketing campaign for Optimel Control®, a yogurt drink first launched in the Netherlands in 2007 with great success but later withdrawn after expansion to other countries due to insufficient sales volume. It contained an ingredient that EFSA ruled in 2011 was not effective to control or manage weight.

According to the study, the textual health claims constituted “a relatively small element in conveying the ‘stay in control’ message of Optimel Control.” Those claims, which were allowed at the time, were actually “a very small element in the full marketing campaign,” which featured wasp-waisted bottles and videos of women who could apparently stay slim by the simple expedient of consuming the yogurt rather than working out or dieting. By studying social media messages, the authors concluded that consumers associated the product with rapid weight loss “even if the textual health claims of Optimel were more modest than that. The massive non-textual marketing campaign led consumers to interpret the health effects of Optimel differently from the carefully stated textual claims Optimel used.”

Noting that the EU regulatory framework does not “sufficiently take account of non-textual claims” and that asking EFSA “or another agency to also start evaluating non-textual claims as part of pre-market approval of products” would “amount to a regulatory nightmare,” the authors suggest that non-textual product messages be regulated by means of unfair commercial practices legislation. This would, according to the authors, allow “for a monitoring of deceptive practices at the national level by the appropriate authorities.”