The food supplement market in Poland has been under particularly close scrutiny from the President of the Office of Competition and Consumer Protection (UOKiK) in recent years. In response to advertising campaigns violating the collective interest of consumers, the antitrust regulator has imposed several fines and issued a number of decisions obliging supplement makers to change their ways. The most common infringements consisted in creating the impression that the advertised product is a medicine or attributing medicinal properties to it.
In stark contrast to years past, in 2017 alone the President of the UOKiK delivered decisions in as many as five high-profile cases involving food supplement advertising. In one instance the authority imposed an unprecedented penalty of PLN 26 million (USD 7 million) on the producer. The sheer number of cases investigated by the authority is a clear warning that the market is being monitored closely and no infringement in the field of dietary supplement advertising will go unpunished. It should be equally obvious to the industry that the legal principles which apply to advertising across the board pertain to dietary supplements, too. Businesses in the sector would surely benefit from acquainting themselves with the UOKiK’s decisions in cases involving other types of products and services. It is against this backdrop that the very recent case of Green Magma appears particularly noteworthy.
What is Green Magma
Green Magma is a barley grass supplement. Available as tablets or as a powder that can be mixed into juice or water, it is billed as complementing the daily diet with a range of nutrients and phytochemicals. Green Magma consists of three primary ingredients: barley grass juice powder, maltodextrin derived from tapioca and brown rice. It is recommended as a weight loss booster.
The President of the UOKiK investigated the Polish advertising and marketing campaign of Green Magma, finding it to have harmed the interest of consumers.
The allegations were based on the content of several Green Magma television and Internet commercials as well as press advertisements. The authority ascertained that two types of unlawful practice had been exploited in the campaign. One of the charges focused on the use of prohibited health claims. The other concerned the fact that while the product was consistently marketed at discount prices, the commercials kept informing viewers of its original (ridiculously high) prices, which were eventually determined to be fictitious.
Food supplements are not drugs and consequently must not be attributed with medicinal properties, e.g. they cannot be claimed to reduce fever, relieve backache or clear the sinuses. Under Polish law, dietary supplement advertisements may not feature recommendations by a doctor or pharmacist; in fact, they may not even show a stethoscope. In the case analyzed by the UOKiK, the distributor of the offending product declared in its commercials that it “cleanses the body of toxins” and “has anti-inflammatory effects”. According to the regulator, the supplement in question was thus claimed to exhibit properties, including the ability to prevent or cure diseases, which it – not being a medicine – did not have. This of course amounts to the use of prohibited health claims.
Furthermore, the supplement was marketed as remarkably conducive to weight loss. The ads, according to the authority, contained numerous false claims, e.g. that taking Green Magma could help one lose up to 20 kilograms (or – in another commercial – up to 14 kilograms) or that its beneficial effects were felt after only three days. They asserted that over 50% of dieting women in the US used the barley grass supplement and promised that it boosted weight loss without dieting or exercise. Claims like these clearly refer to the rate or amount of weight loss and thereby violate several legal provisions, including Art. 12(b) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods and Art. 5(1) of the Polish act on counteracting unfair market practices. Additionally, they fall foul of the collective interest of consumers as defined in Art. 24(2) and (3) of the Polish act on competition and consumer protection.
Next, the President of the UOKiK considered the prices at which the food supplement was offered in the advertising campaign. The commercials persisted in highlighting the reduced prices at which it was being sold. In one instance, a Green Magma product was advertised as normally available at a regular price of PLN 500 (its other “regular prices” were set at PLN 1000, 700 and 400), while “only today” it could be bought for just PLN 99. Exhortations to purchase the product were accompanied by messages to the effect that the special offer would run out within 15 minutes of airing (or – in another advertisement – at the end of the day) or that it would not be repeated.
The UOKiK considered the latter strategy to be particularly dishonest. The use of such expressions as “the special offer ends today” or “call now” may have suggested that the offer was valid only at the time when the commercials were broadcast. Curiously, the phrase “the special offer ends today” appeared regularly in Green Magma press advertisements published at different times over 2015 and 2016 in various daily newspapers as well as weekly and monthly magazines. This led the President of the UOKiK to conclude that the offer was essentially at no point limited in time and the use of the phrase was a marketing ploy to persuade consumers to buy the supplement. The regulator established that all the prices quoted as regular were false and misleading. Their only purpose was to create the illusion that a very expensive product could be bought at a very favorable price, but the purchase had to be made almost instantly.
According to a general rule of food law – the legal regime with which dietary supplements have to comply – it is obligatory to provide the consumer with full information on the composition of a product and its nutritional properties in order to grant him access to the data necessary to make his own choices in full knowledge of the facts. For this reason the President of UOKiK delivered a decision obliging the distributor of the supplement at issue to desist from the unlawful advertising practices.
On top of the criticism of the unfair and misleading information on the price of the product, the regulator addressed the issue of its “special properties”, as they were dubbed in the campaign. The UOKiK ascertained in the course of the proceedings that the claimed properties were not supported by scientific research.
The Polish food supplement market is already very large, and it continues to grow every year. It should therefore be no surprise that it is coming under ever tighter control from regulators.