Information Note on the 2023 Food Supplement Advertisements Report

The 2023 Food Supplement Advertisements Report ("Report") was published by the Turkish Advertising Board ("Board") on 26 February 2024 on the official website of the Ministry of Trade of the Republic of Turkey ("Ministry"). In the Report, the regulations on food supplements are included by defining the concept of food supplements, based on the file examples on the Board's agenda and by mentioning the general structure of advertisements in the sector detailed examinations are introduced on the advertisement examples that are found to be "contrary" to the relevant legislation, and recommendations are given on the issues that should be considered in food supplements advertisements.

1. The Concept of Food Supplements

Within the scope of the Report, Food supplements are defined in parallel with the definition under the Veterinary Services, Plant Health, Food, and Feed Law numbered 5996 ("Law numbered 5996"), which regulates the principles related to ensuring the safety of food products and the basic principles to be complied with in their production and import, as supplementation of nutrients that individuals perceive that they cannot get enough from the food products they consume within the framework of their normal eating habits or that they feel deficient or as additional dietary support preferred to meet the needs of the body in cases where regular, balanced and healthy nutrition is not consumed. In this context, the purpose of the production and use of food supplements is to support normal nutrition or certain physiological functions and to ensure adequate intake of certain nutrients. The critical point to be considered here is that food supplements cannot replace normal nutrition, cannot be characterized as medicines in any way and therefore cannot be promoted as medicines under any circumstances. Indeed, claims and statements that food supplements are used to treat, cure, or prevent diseases do not coincide with the qualities and nature of food supplements. Accordingly, when the provisions of the relevant legislation in which food supplements are defined on the basis of function and form are assessed, it is prohibited to promote, offer for sale, and label these foods for purposes other than their production and use.

2. Regulations on Food Supplements

There are mainly two ministries in Türkiye that have the authority and duties regarding the regulations applied for dietary supplements: The Ministry of Agriculture and Forestry and the Ministry of Health.

Accordingly, the Turkish Food Codex Communiqué on Food Supplements No. 2013/49 ("Communiqué") was prepared by the Ministry of Agriculture and Forestry, which is responsible for determining the product specifications in order to ensure the production, preparation, processing, preservation, storage, transport and placing on the market of food supplements in accordance with its technique and hygienically. Pursuant to the Communiqué, the labelling, presentation, and advertisement of food supplements shall not contain any statements indicating, implying, or emphasizing that the nutrients cannot be met by an adequate and balanced diet, or stating that the food supplement has the ability to prevent, treat or cure a disease or referring to such properties. Similarly, the Turkish Food Codex Regulation on Labelling and Informing Consumers stipulates that no information can be given that the food supplement has the ability to prevent, treat, or cure a disease and that no reference to such properties can be made.

Furthermore, pursuant to the Regulation on the Use of Health Claims in Food and Food Supplements implemented by the Turkish Medicines and Medical Devices Agency, a subsidiary of the Ministry of Health, ambiguous, false, or misleading health claims cannot be used in the labelling, promotion or advertisement of food supplements, nor can they consist of content that would support or encourage excessive consumption. Accordingly, the Report underlined that the use of health claims that explicitly state or imply that the product is therapeutic and beneficial while promoting food supplements is contrary to the law.

Moreover, Article 8 of the Regulation on Commercial Advertising and Unfair Commercial Practices ("Regulation") published according to the Protection of Consumers Law numbered 6502 ("Law numbered 6502"), which regulates the fundamental rules, procedures and principles regarding commercial advertisements and promotions for all kinds of goods and services offered to consumers, stipulates that food supplements cannot be subject to comparative advertising under any circumstances, including health declarations, by stating that "Comparative advertising of food supplements cannot be performed in any way."

It should be noted that the mandatory provision in Article 26 of the Regulation stating that "...advertisements for food supplements must also comply with the other provisions of the relevant legislation regarding advertisement and definition." obliges food supplement advertisements to comply with the legislation containing the basic regulations for this product group. In this respect, commercial advertisements for food supplements must comply with the above-mentioned legislation in terms of nutrition declaration, health declaration, packaging, labelling, correct information, and instructions for use. In fact, the Report states that according to the Advertisement and Unfair Commercial Practices Survey conducted by the Ministry, approximately one out of three digital consumers have encountered advertisements containing health claims on the internet, one out of three consumers who have encountered advertisements or content containing health claims have purchased these products, and half of the purchasers have been victimized due to the statements in the advertisements.

3. Food Supplements Advertisements from the Board's Perspective

The Board is authorized to supervise the compliance of commercial advertisements with the relevant legislation and impose the necessary administrative sanctions on advertisements determined as a violation; however, a commercial advertisement is not on the Board's agenda and cannot be evaluated unless it reaches the consumer. In this context, in the Report, in order to eliminate the grey areas that may arise in the preparation process of commercial advertisements for advertisers, explanations have been made on the basis of the relevant provisions of the Regulation, based on examples of advertisements that are considered to be in violation and have been included in the agenda of the Board in the past.

3.1. Advertisements that "impair public health", "exploit the fears of consumers" and "provoke anxiety in consumers"

According to the Report, one of the most common elements of contravention in food supplement advertisements is that these advertisements impair public health by mentioning a disease that is a cause of anxiety in a large part of society and by using expressions and visuals that mention the therapeutic effect of the advertised food supplement against these diseases.

For example, at the Board's meeting dated 14 July 2020 and numbered 299, the Board decided that the statements in the posts published on social media accounts that a food supplement protects against all kinds of virus-borne infections, including Covid 19, and that infected people can recover thanks to this product, are deemed to be impairing public health due to exploiting the fears of consumers, promoting the product as a "medical product” and interrupting the medical treatment process. Again, in respect of a food supplement advertisement regarding the treatment of cancer, it was determined that the advertisement caused the products to be perceived as medical products, exploited the fears and concerns of consumers with the phrases like "against cancer, the disease of our age", and therefore, it was determined that it was impairing public health.

3.2. Implicit Advertisements

In Law numbered 6502, the inclusion of trademarks, logos or other distinctive shapes or expressions, trade names, or business names in articles, news, publications, and programs for the purpose of advertising goods or services, without clearly stating that it is an advertisement, and presenting them in a promotional manner is considered as implicit advertisement, and it is prohibited to make implicit advertisements in audio, written and visual form in all kinds of communication tools. However, today, especially due to the increase in the use of social media, the creation of content for various products without explicitly stating that it is an advertisement by people called "influencers" who have the potential to reach consumers with a certain number of followers, it is not clear and transparent whether the promoted product is actually used by the person sharing the experience and whether there is any commercial relationship between the promoted company and the influencer. For this reason, most of the posts are not even perceived as advertisements by consumers and this situation leads to violation of consumer rights and even unfair competition between rival firms. In this context, the Report, in parallel with the Board's "Guidelines on Commercial Advertisements and Unfair Commercial Practices by Social Media Influencers", underlined that the posts should be labelled as "commercial advertisements".

3.3. Advertisements Containing Statements in Need of Proof

Pursuant to the Regulation, advertisers are obliged to prove the accuracy of the claims in their commercial advertisements. In this context, verifiable definitions, claims, illustrative narratives, or, if the advertisement contains a comparison, the claims subject to comparison must be proven with information and documents that have scientific validity at the time of publication of the advertisement. For example, in a file examined by the Board on the grounds of the use of statements in need of proof, administrative sanctions were imposed on the advertisements for stating that a food supplement consists of "natural" ingredients, but no proof was provided; in another file, the basis of the claim was based on old research, but no information was provided to prove that the research was up to date.

3.4. Advertisements Containing Denigration

Commercial advertisements cannot denigrate, openly ridicule, or similarly disparage any person, institution, organization, commercial or professional activity, good or service, advertisement, or brand. In a decision examined by the Board, an administrative sanction was imposed based on the assessment that a post on fish oil contained a clear denigration of fish oil products sold in forms such as capsules and syrups by creating the perception that they are difficult to use, cause difficulty in swallowing and have a bad odor.

3.5. Unfair Advantage of Reputation and Witnessed Advertisements

It is prohibited to use the name of a person, institution, or organization or its emblem, logo, and other distinctive corporate identity elements in commercial advertisements in a way that may mislead consumers. According to the Report, the use of the phrases "In All Pharmacies" in advertisements by using the perception of trust that pharmacies have in the eyes of consumers, and the use of the names and images of physicians known in the public opinion to create the impression that people who are perceived as reliable authorities approve the advertised product, mislead consumers, and impair public health.

3.6. Food Supplements Advertisements for Children

The Report mentioned the importance of using health declarations in accordance with the legislation in the advertisements of food supplements for children and stated that the administrative sanctions imposed arise from the violation of the health declaration legislation. The Report also stated that, according to the Communiqué, it is prohibited to produce and place on the market food supplements for infants and young children under two (2) years of age, and that the label of food supplements should include the product name and the age group for which it is suitable.

3.7. Advertisements Using Health Declarations Contrary to Legislation

As mentioned above, it is of utmost importance to use health declarations in food supplement advertisements in accordance with the legislation. This is because health declarations may lead to the abuse of consumers' sensitivities towards their physical and mental health and may even lead to fatal consequences due to being used incorrectly and without the supervision of health professionals. For example, the promotion of food supplements with statements such as "preparing consumers for summer", "slimming", "weight loss" and "appetite suppressant" was found to be contrary to the relevant legislation.

3.8. Use of a Health Declaration in a Trademark

As stated in the Report, the Board analyses the advertisement presented to the consumer as a whole in the files brought to its agenda and focuses on the perception that the advertisement will create in the average consumer. Accordingly, in one of the decisions of the Board it was assessed that, even if a food supplement has a brand name registered by the Turkish Patent and Trademark Office, if the brand name of the product creates the perception that it provides protection against epidemics, this would mislead consumers or lead to excessive use for disease protection, and administrative sanctions were imposed. For this reason, even in brand names, expressions that do not declare healing properties should be used as trademarks or trade names.

4. Recommendations for Food Supplements Advertisements

In order to prevent the contradictions encountered in advertisements for food supplements, which have increased with the widespread use of information technologies and electronic commerce, the Report provides certain recommendations that may guide advertisers, advertising agencies and media organizations. Accordingly;

• All kinds of written, verbal, and visual elements used in advertisements, from the qualifications of food supplements to certificates, from production times to sales points, should be accurate and honest in this regard.
• All messages and claims to be conveyed explicitly or implicitly should have sufficient and reliable evidence in order to prevent advertisements from being considered misleading by being considered to contain false or incomplete statements. Instead of using complex scientific concepts, easy and quick-to-understand language should be used.
• Advertisements should only include health declarations that are permitted to be used in accordance with the legislation, warnings should be used as required, and statements that include or imply expressions of gratitude, praise, advice or approval associated with the experience of the person consulted or national and international institutions and organizations should not be used.
• It should be ensured that there are no implicit claims in addition to the messages explicitly conveyed through written or vocal expressions used in advertisements. Visuals added to make the advertisement interesting and remarkable, even without the intention of conveying any implicit message, may create different impressions on the consumer.
• Consumer perception should also be considered when determining the product name or brand, as the impression created by the name or brand of the food supplement is also important in advertising controls.

* You can access the Turkish version of this article via this link.