Compliance

Weight Management / Weight Loss Products

Weight Loss Products
Weight Management Products
Brand Names
Thermogenesis
Consumer Warnings and Information
Testimonials
Classified Advertisement
Advertising Requirements and Guidance
References

The rules relating to weight management/weight loss products are simple. If an advertiser wishes to claim or imply that a product induces weight loss, then that product must have consent to be distributed in New Zealand as a medicine before it can be supplied.

A 'medicine' is defined as a substance or article other than a medical device that is manufactured, imported, sold or supplied wholly or principally for administering to one or more human beings for a therapeutic purpose (Section 3, Medicines Act 1981).

The Dietary Supplements Regulations 1985 (Regulation 11) forbid dietary supplements from making therapeutic claims and specifically mention “altering the shape, structure, size, or weight of the human body:” as a therapeutic claim¹.

The Therapeutic Advertising Pre-Vetting Service has been set up by the Advertising Standards Authority to provide industry with a tool to assist companies to comply with the advertising requirements of the medicines legislation, and these guidelines have also been developed to assist advertisers.

Weight Loss Products

A weight loss product clearly has a therapeutic purpose and is considered to be a medicine (Section 4, Medicines Act 1981). Obesity is a condition listed in Part II of the First Schedule to the Medicines Act 1981.

The distribution and sale of a medicine (ie, a product intended for a therapeutic purpose) without the consent of the Minister of Health is an offence under Section 20 of the Medicines Act 1981.

In the case of an advertisement for a product for weight loss which does not have consent, both the advertiser and the publisher can be liable under Sections 57, 58 and 59 of the Medicines Act 1981.

Weight Management Products

Products sold as part of a weight management programme may be meal replacements or dietary supplements to replace essential vitamins or minerals lacking as a consequence of a reduced dietary intake. They cannot claim weight loss as a stand-alone product but can be associated with a programme that includes diet and exercise.

By definition, a dietary supplement is intended to supplement the amount of amino acid, edible substance, herb, mineral, synthetic nutrient, or vitamin normally derived from food².

The labelling and promotion of products intended to be used as part of a weight management program should not represent the product as having a therapeutic purpose.

Consideration should be given to the following.

Check the ingredients; make sure the product contains no scheduled medicines (eg, ephedrine).
If the product works by increasing metabolism then the product is a medicine because it interferes with the normal operation of a physiological function.
If the product acts as an appetite suppressant, it is a medicine.
If the product introduces bulk and has limited nutrient value yet suppresses the appetite it is a medicine.
If an advertisement offers quick weight loss results, it is misleading and in breach of the legislation. Products cannot make therapeutic claims.
If the product is to be marketed as a dietary supplement, then the labelling (and all details about the product) must comply with the dietary supplement regulations. If the product is to be marketed as a food or supplemented food, advice should be taken from MPI.
Check for compliance with the Advertising Standards Code.

Examples of wording that suggest a therapeutic purpose are:

weight loss
weapon against ugly flab
increased energy levels
increasing thermogenesis
burning fat
increasing metabolism
controls appetite
suppress appetite
rapid weight management
fat Burning Formula
weight reduction
john lost 6 kilos
reduce the flab.

Suggested statements for use in advertisements for Weight Management Programmes and Products

"This product is part of a weight management programme. Weight programmes should include (healthcare) professional advice on diet, exercise and lifestyle changes. Appropriate advice on diet is important. Weight management programmes take time and personal commitment to be effective".

"Weight management programmes take time and personal commitment to be effective, and also require diet, exercise and lifestyle changes. Ask your health professional for advice."

Brand Names

Care should be taken with the name of the product to ensure that the name does not imply a therapeutic purpose (eg, weight loss).

Care must be taken to ensure that the advertisement does not indicate a therapeutic purpose when considered in conjunction with the product name.

Note: There are currently products on the market that do not comply with this requirement and consideration will have to be given to phasing out such names or registering the product. It is likely that proposed legislation will require some form of registration for these products.

Thermogenesis

Statements such as "increases fat burning" or "increases the burning of fat into energy" and "thermogenic", "creating heat" are indicative of the acceleration of a normal physiological function and indicate the product has a therapeutic purpose of weight loss.

Consumer Warnings and information

It is appropriate to include a consumer warning on products containing guarana and caffeine.

For example, " Note: contains caffeine: Unsuitable for children or caffeine sensitive people. May cause sleeplessness and increased heart rate".

This is because the consumer may unknowingly be increasing their caffeine intake to a level that could adversely affect their health.

Testimonials

For products that do not have consent to be distributed as medicines.
The use of testimonials making therapeutic claims for weight loss is not permitted under the Medicines Act 1981 section 58 (1) (c) (iii). Often it is in the testimonial that a therapeutic claim is made indicating that the product has a therapeutic purpose and should therefore be classified as a medicine under the Medicines Act 1981. Before and after photographs are not permitted since these are pictorial testimonials.

For products that have consent to be distributed as medicines.
The use of testimonials is not permitted, neither are before and after photographs.

For weight management programmes and clinics.
As these advertisements offer a weight management programme and there is no consumable product that induces weight loss involved, then the use of before and after photographs and testimonials may be permitted, but these should be qualified with a statement such as "Individual case only, results will vary."

Classifieds Advertisements

These advertisements have space problems and tend to attract attention by using a highlighted therapeutic claim. This is not acceptable.

Weight loss products that have consent to be distributed as medicines should comply with the legislative advertising requirements, the requirements of the Advertising Standards Code and the requirements of any relevant industry codes.

Advertising Requirements and Guidance

Advertisers should ensure compliance with the following requirements and/or guidelines.

The Advertising Standards Authority (ASA) Code is based on agreement between the ASA and the organisations that represent the media in which the advertisements are published.

In association with the ASA, one of the contributing members, the Association of New Zealand Advertisers (ANZA) has set up the Therapeutic Advertising Pre-vetting System (TAPS) to provide this service. TAPS Consultants are familiar with the relevant legislative and other guideline requirements and will pre-vet advertising for compliance. Organisations must first register with ANZA, PO Box 9348, Newmarket, Auckland, phone 64 9 300 5932 in order to use the TAPS service.

Contact TAPS