by Judyta Kruk-Antoszewska legal trainee at Kancelaria Prawna Nowicki i Ziemczyk Adwokaci i Radcowie Prawni Sp. p. in Warsaw
The Polish market of dietary supplements is huge and continues to grow at an unprecedented pace. Such a competitive market forces producers and distributors to engage in extensive marketing campaigns, including advertising, which unfortunately is frequently aggressive.
One can hazard a guess that each and every radio listener knows a dozen or so such adverts by heart. However, not everyone knows that such an advert must satisfy a lot of requirements to comply with the provisions of law. It is essential – dietary supplements are an important and necessary element of nutrition, yet they should not be overused or consumed at will. The current situation casts a shadow over a positive approach to dietary supplements as foodstuffs that supplement a balanced diet. The result? An uninformed consumer might be more inclined to take unnecessary supplements.
In theory, advertising dietary supplements is subject to strict regulations – adverts must contain a statement that the product is a dietary supplement. Adverts cannot suggest that the mere consumption of the supplement will provide the necessary daily nutrients or state that a dietary supplement can prevent or treat diseases.
Using food and health claims in advertising is very interesting – and tempting at the same time. “Low energy value,” “no fat,” “no added sugars” – these are examples of food claims. Health claims are often used to indicate the characteristics of the substances contained in the dietary supplement.
At the moment, advertisers may only use claims that have been accepted under a relevant EU procedure and that satisfy the requirements set by the Union. For example, the following sentence might be a permitted health claim regarding vitamin C: “Vitamin C contributes to maintenance of normal functioning of the immune system during and after intense physical exercise.” However the abovementioned statement may only be used in line with EU law under a certain condition. The regulation containing the list of approved claims includes a column entitled “conditions of use of the claim.” Therefore, in accordance with the conditions of use of the claim referring to vitamin C, the above claim may be used “only for food which provides a daily intake of 200 mg of vitamin C. In order to bear the claim, information shall be given to the consumer that the beneficial effect is obtained with a daily intake of 200 mg in addition to the recommended daily intake of vitamin C,” the regulation reads.
Is the application of that claim by the supplement producers really controlled? As we listen to radio adverts of dietary supplements or as we look at their boxes on pharmacy shelves, we see that despite these prohibitions, they are not enforced by Polish authorities. Moreover, was it reasonable to reject many health claims related to the characteristics of creatine, propolis, aronia or folic acid that have been in use? These health claims are not included in the annex as they have not been substantiated by research.
We observe a tendency to limit advertising freedom at the EU level. In general, this tendency is reasonable, as the prohibition of misleading advertising turned out to be insufficient. We might argue about the contents of the list of permitted health claims and demand that it is expanded. However, we should first and foremost consider whether compliance with EU legislation is sufficiently controlled in Poland. There is a fear that producers or distributors of supplements that comply with each and every provision of the advertising law cannot develop their business without falling victim to unfair competition. We might also feel – and that feeling is reasonable – that some supplements containing proven substances that have been known for years were pushed out of the market by the prohibition to use health claims that are – according to the Union – unproven, and insufficiently substantiated by research.
As a recipient of advertising, I have the feeling that nobody watches over the contents of dietary supplement advertising and that the trends set out by the current provisions of law do not contribute to reliable, fair advertising which doesn’t mislead consumers. Both the form and the structure of the message that is forbidden in advertising medication (a person that advertises a supplement poses to be a doctor or a pharmacist) and the prohibition to use health claims in relation to many known and proven substances are controversial. It seems that the legislative regulations and sanctions imposed by the law should focus on increasing social awareness in the area of dietary supplements. Legislation related to dietary supplements is becoming more and more extensive, yet it does not translate into the reality of advertising. A lack of supervision promotes unfair advertising and gives arguments to those that focus only on the negative consequences of supplements.
Are the Polish authorities too tardy? Are severe financial punishments imposed on entities that break the law insufficient? Or, perhaps, do they fail to disclose the scale of this phenomenon? Clearly, that would constitute a much needed general prevention measure.