While Poland favors dietary supplements, the OCCP sends letters…

In the last quarter of 2013, 75.5% of respondents (out of whom 81.8% were women and 68.7% were men) took at least one medicinal product or dietary supplement. A statistical Pole takes 4 pills a day.[1] Experts predict at the end of 2016 the dietary supplements market may be worth PLN 4.2 billion.[2] A consequence of such a dynamically developing pharmaceutical market is an increasing number of advertising campaigns for dietary supplements. A well-founded fear is that, when it comes to consumers, the information shortfall may be exploited by ad makers and by supplements’ manufacturers and distributors. Especially considering the first institution to whom the average consumer turns when seeking advice is “doctor Google” and the “necessary” knowledge about medicinal products is nowadays derived from adverts, the reliability of which is, unfortunately, doubtful in some cases.

As part of their activities for consumer protection, the Office of Competition and Consumer Protection (OCCP) and the Chief Sanitary Inspectorate (CSI) sent letters to dietary supplements’ manufacturers and distributors. The joint actions of the OCCP and the CSI represent the first stage of a campaign concerning supplements.

In the letter sent to 315 manufacturers and distributors, the OCCP and the CSI reminded about the rules for proper advertising of dietary supplements. Above all, the OCCP indicated a dietary supplement advert cannot be misleading. Exploiting consumers’ ignorance, unawareness and lack of experience is also forbidden, which means that such adverts cannot attribute medicinal properties to dietary supplements, since the latter are simply foodstuffs. Suggesting, in whatever way, that dietary supplements are remedies for many ailments is also forbidden. Likewise, it is unacceptable to use stereotypes inducing fear or promising rapid progress. The OCCP emphasizes the content of dietary supplements adverts cannot indicate it is necessary to take dietary supplements in order to satisfy basic human needs. Nor is it allowed to exploit the “dualism” of the product, i.e. make use of the fact that a medicinal product and a dietary supplement have a similar name. As emphasized in the letter, inappropriate marketing communication may breach good commercial practice and violate the law and the sense of social responsibility.

Why is it worth reading between the lines?

What was the intention of the OCCP and the CSI? It seems the letter is a forerunner of more decisive actions by the OCCP and the CSI, like, say, interventions to eliminate unlawful messages in supplements adverts. Now their letter is only a request that manufacturers and distributors verify the ways of presenting dietary supplements and the content of adverts, in particular through internal review of procedures in terms of analyzing risks related to broadcasting, in order to avoid infringement of law and good practice. However, if such self-regulatory measures are not implemented, the OCCP and the CSI will use their enforcement rights.

The supplement advert — what needs to be remembered?

As indicated above, the dietary supplement advert cannot deceive the consumer, especially in terms of the supplement’s characteristics, name, type, properties, content, quantity, durability, source or origin, as well as manufacturing or production methods. Apart from the guidelines indicated in the OCCP’s letter, it should be remembered the dietary supplement advert cannot contain information stating or suggesting a balanced and varied diet cannot provide appropriate quantities of nutrients (Art. 27 of the Act on food and nutrition safety).

Here a question arises: can dietary supplements be advertised by people indicating they have medical education (like in the case of actors playing doctors)? The regulations do not forbid such type of advert. It is only explicitly forbidden to refer to doctor’s recommendations in terms of particular specialties (based on the Regulation No 1924/2006 of the European Parliament and Council of 20 December 2006 on nutrition and health claims made on foods). However, the provisions of the Act on combating unfair competition have to be taken into account, which establish a ban on deceptive adverts. Presentation of a dietary supplement by people suggesting they have specialist knowledge on health issues creates a real threat the message regarding the advertised product will be misinterpreted. An example of a decision which stated such activity is improper is the OCCP’s decision (RPZ 12/2011) establishing that collective consumer interests are breached by indicating in the advert a person recommending a dietary supplement has an academic title of professor and at the same time is an expert on heart health. In fact, people appearing in adverts would not have such titles and education, which makes such adverts deceptive. What’s important, the evaluation of the advert as misleading is not influenced by the fact that the supplement’s manufacturer would have an expert’s — a professor’s — opinion, such opinion recommending the use of a preparation belonging to the manufacturer’s supplements group. Above all, the President of the OCCP questioned the form of presenting the advert content and stated that using somebody’s academic title and creating a fictional person defined by name and surname was a breach of the consumers’ trust, which is against the principles of social co-existence. Of course every advert has to be evaluated separately, taking into consideration a typical consumer benchmark. Nevertheless, such signals given by the abovementioned authorities are being recognized.

To be continued

The advertising industry, as well as dietary supplements manufacturers and distributors, may be confused, given the lack of specific legal regulation concerning such adverts (unlike in the case of adverts of medicinal products). For that reason, the OCCP’s actions should be considered positive, not only because of their main goal, i.e. consumer protection, but also for the guidelines on proper advertising of dietary supplements. It is always worth educating first and only then reverting to punishment. Of course manufacturers, distributors and advertising agencies should remember there may not be much time between the former and the latter action taken by the regulator…

For now, we wish you all good health!

Letter to dietary supplements manufacturers and distributors

[1] Report of the Central Statistical Office on health protection in households in 2013.

[2] PMR report „Dietary supplements market in Poland 2014. Development prognosis for 2014-2018.″