Tym razem zajmiemy się reklamą suplementów diet. Rozmawialiśmy już o reklamie wyrobów medycznych, a teraz czas na przedstawienie zagadnienia reklamy suplementów diety, a powodem jest opublikowany przed kilkoma dniami projekt zmiany ustawy z 25 sierpnia 2006 r. on food and nutrition safety, which has been referred for opinion and public consultation (the “Draft”, published and referred for agreement and consultation on 02.01.2023).
As the project proponent points out:
The proposed amendment (....) stems from the need to adapt the market surveillance instruments for foodstuffs covered by the notification of first marketing on the territory of the Republic of Poland, primarily dietary supplements, to the dynamically developing market for these products.
The subject of the regulations include changes to the procedure for notifying the Chief Sanitary Inspector (hereafter abbreviated as “GIS”) of the first marketing of foodstuffs, including dietary supplements, as well as changes to criminal provisions and provisions on fines.
However, the most space has been devoted to the hitherto unregulated issues of labeling, presentation and advertising of dietary supplements, and this is what we will mainly address in this publication.
As noted in the justification, the market for the sale of dietary supplements in Poland is characterized by an extremely high growth rate, which is reflected and confirmed by all statistics, including the number of notifications – notifications of placing a product on the market for the first time (in 2007-2016, the GIS received a total of about 33114 notifications, in 2017-2020 – 62,808, and in 2021 alone – about 21993 notifications), or the value of retail sales of dietary supplements, which is growing significantly each year and in 2021. has already reached 6 billion zlotys.
The sources of this growth are precisely in the advertising of dietary supplements, its prevalence, the techniques used by advertisers to influence consumers, including taking advantage of consumers’ ignorance and unawareness of the differences between dietary supplements and medicinal products. Thus, advertising messages shape consumers’ awareness and knowledge of dietary supplements, which is sometimes supplemented by information available on the Internet, less often by consulting doctors, pharmacists or nutritionists. The arguments cited in the justification leave no doubt that the draftsman’s assessment of the content of dietary supplement advertisements broadcast to date and their impact on consumers is clearly negative. Against these phenomena, the designer has proposed specific solutions and tools. First of all, the proposed regulations are designed to protect consumers from being misled, equip them with adequate information and protect them from excessive marketing pressure. It is also worth noting that the proposed solutions, on the one hand, draw on existing solutions, i.e. regulations in the area of advertising of medicinal products dispensed by physician’s footnote (OTC), while at the same time one of the goals of introducing new regulations on advertising of dietary supplements is precisely to guarantee recognition and differentiation of OTC medicinal products and dietary supplements, as well as the purpose of both groups of products and their use.
The advertising guidelines for dietary supplements in the Project are as follows:
- “The labeling of dietary supplements must not contain information stating or implying that a balanced and varied diet cannot provide sufficient nutrients for the body.”
– which is an amendment to an existing regulation in the law (Article 27(5)), from which “presentation and advertising” were excluded, and in the Draft regulated them separately under the new provisions of Art. 27a and 27b described below.
- The obligation (order) to present the dietary supplement in the presentation or advertising in a fair and non-misleading manner and in accordance with EU regulations, i.e.. in particular with the requirements of the Regulation of the European Parliament and of the Council (EU) on the provision of food information to consumers (…);
- The obligation (order) to include in the presentation or advertising of a dietary supplement the following information: “A dietary supplement is a foodstuff whose purpose is to supplement the normal diet. A dietary supplement does not have medicinal properties.” while depending on the form of presentation or advertising:
(a) In an audiovisual presentation or advertisement, the information with the above content is to have the following features:
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- shall be placed horizontally, stationary, in the lower part of the presentation or advertisement, on a plane constituting no less than 20% of its surface;
- shall be placed in such a way that the text is legible, standing out from the color scheme of the advertisement and the background of the plane, in black on a white background or in white on a black background, with a thickness representing 20-25% of its height;
- appears on the screen throughout the broadcast of the presentation or advertisement;
- shall be read clearly in Polish, and the duration of the transmission of this information shall not be less than 5 seconds;
- reads when presenting a dietary supplement package.
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(b) In a presentation or audio advertisement, the information with the above content shall be required to be read clearly in Polish, and the duration of the transmission of this information shall not be less than 5 seconds,
(c) In a presentation or visual advertisement, information with the above content is to have the following features:
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- shall be placed horizontally, in the lower part of the presentation or advertisement, on a plane constituting no less than 20% of its surface;
- shall be placed in such a way that the text is legible, standing out from the color scheme of the advertisement and the background of the plane, in black on a white background or in white on a black background.
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- Prohibit the presentation or advertising of dietary supplements in the following form, content or place:
(a) directed or implying that its message is directed to children under 12 years of age, including the use of their image or voice;
(b) using the image or recommendation of a real or fictitious physician, dentist, pharmacist, pharmacy technician, feldsher, nurse, midwife, paramedic, laboratory diagnostician, physiotherapist, nutritionist, public health specialist, and other medical professionals, as well as degrees and titles in the fields of medical and health sciences; and:
– objects, signs, symbols that may be associated with the performance of any of the above-mentioned professions, including a stethoscope, an apparatus for measuring blood pressure, a bed, equipment for physiotherapy exercises, a scale, an anthropometric tape;
– activities that may be associated with the performance of any of the above. professions, including research, writing prescriptions, selling at a pharmacy or drugstore;
– other elements that may evoke the same associations as those specified above;
(c) misleading as to the properties or status of a dietary supplement by including a common main element with the proprietary or common name of a medical device, medicinal product, or a common graphic or trademark, graphic shape or packaging using similarity with the designation of a medical device or medicinal product (concerning so-called umbrella brands);
(d) in units of the educational system, in entities performing therapeutic activities;
(e) in pharmacies and pharmacy outlets, in non-pharmacy outlets (with the exception of the presentation of dietary supplements in separate areas placed in the buyer’s field of vision, which must be separate from the areas where medicinal products, medical devices and cosmetics are presented, and must not be in the immediate vicinity of the customer service point).
- A mark confirming the quality and safety of the product shall be introduced in the labeling, presentation or advertising of the dietary supplement, granted on the basis of an analysis of its composition, whereby the placement of the mark will be possible after conducting laboratory tests and obtaining an opinion from a scientific unit confirming the compliance of the dietary supplement’s composition with the requirements for food safety and dietary supplements (the pattern of the mark, the unit authorized to issue an opinion, the procedure and fees are to be determined by the minister responsible for health by regulation).
The idea of regulation should be evaluated positively, although certainly the proposed solutions and provisions are stirring a lively discussion in public consultations and in journalistic, business and legal discussions.
Therefore, it is not excluded that the Project will see changes at the level of detailed provisions, but there are grounds for assuming that the main principles of the regulation will be maintained (demands in this regard, however, have been made for some time).
We suggest you get acquainted with them now and keep an eye on developments that could significantly change the dietary supplement distribution market.
Below is a link to the Project:
https://legislacja.rcl.gov.pl/projekt/12367901/katalog/12941895#12941895
