Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and one was Not upheld.
Ad description
An e-mail from SMA, sent in May 2012, was headlined "How is feeding going?". The paragraphs below gave advice on breastfeeding, including how to check the baby was receiving enough milk and how to avoid discomfort. Text surrounded by a box then stated "Remember ... It's OK to ask for help with breastfeeding. Speak to your midwife or public health nurse, or call the SMA Careline".
Under the title "Considering combination feeding?" text stated "Combination feeding is when you breastfeed your baby and give them bottles of expressed breast milk or infant formula as well. You need to wait until breastfeeding is well established before you start combination feeding, and this usually takes at least four weeks. Bear in mind that, if you use infant formula, combination feeding will reduce the amount of breast milk you produce. It can take a while for breastfed babies to get used to feeding from a bottle. Avoid introducing a bottle when your baby is tired or very hungry. Or perhaps try letting someone else have a go at feeding your baby. If you plan to use formula for combination feeding, SMA First Infant Milk comes in convenient ready-to-use cartons or pre-measured sachets of powder. You can also buy SMA Starter Packs which contain 12 x 100ml ready-to-use bottles of SMA First Infant Milk with 12 NUK hygienic teats. They're ready to use, disposable and there's no sterilising required." A link to the SMA website was provided.
The final section of the e-mail was titled "Thinking of Bottle Feeding?". The text, which was accompanied by a picture of SMA First Infant Milk, stated "If you can't breastfeed, or choose not to, SMA First Infant Milk is scientifically formulated to meet your baby's nutritional needs when your baby is not breastfed or for combination feeding. It's suitable from birth and contains a protein profile and a new fat blend closer to that of breast milk, plus Omega 3&6 LCPs".
The e-mail contained small print which explained the importance of breastfeeding and the need to seek advice before switching to infant milks.
Issue
Baby Milk Action challenged whether the ad breached the Code because:
1. it promoted infant milk, which was prohibited; and
2. the e-mail had been sent without explicit consent.
Response
1. & 2. Pfizer Ltd, trading as SMA Nutrition (SMA), responded that the e-mail had been sent to members of the SMA Know How baby club. After investigating the matter, they confirmed that they had received the recipient's details several months earlier from a third-party website which allowed users to sign up to a number of baby clubs in one place. SMA noted that users of that site were given the option to exclude specific baby clubs from their registration in the event that they had already signed up via other means or did not wish to join for any other reason. They said the recipient of the e-mail in this case had not deselected SMA when signing up. They stated that, on the other hand, she had ticked a box to opt in to receiving "information about milks and bottle-feeding", and that in doing so she had requested information of that sort. SMA provided copies of the recipient's data as captured by the third-party website's data handling company.
SMA stated that they had first contacted the recipient of the e-mail to welcome her to the SMA Know How baby club shortly after she had signed up via the third-party website, and that all e-mails sent to her had included a clear "unsubscribe" link.
SMA asserted that the e-mail constituted informational material about the feeding of infants and not advertising. They noted that the Infant Formula and Follow-on Formula Regulations 2007 (the Regulations) allowed for such materials to be produced provided that they included information on a number of issues related to breast- and bottle-feeding. They said the e-mail in question contained all of that information under the heading "IMPORTANT NOTICE".
Assessment
1. Upheld
The ASA understood that SMA did not believe the e-mail constituted advertising. We noted that the e-mail, which featured the SMA logo prominently in two places, was headed "How is feeding going?" and asked "If you're breastfeeding, do you sometimes wonder if your baby is getting enough milk?" and "Feeling sore?", before stating, "Considering combination feeding? Combination feeding is when you breastfeed your baby and give them expressed milk or infant formula as well". The e-mail then went on to give positive statements about SMA First Infant Milk: "If you plan to use formula for combination feeding, SMA First Infant Milk comes in convenient ready-to-use cartons or pre-measured sachets of powder. You can also buy SMA Starter Packs which contain 12x100ml ready-to-use bottles of First Infant Milk with NUK hygienic teats. They're ready to use, disposable and there's no sterilising required. Find out more at smanutrition.co.uk". An image of two containers of SMA First Infant Milk was displayed under the heading "Thinking of Bottle Feeding?", and alongside text stating "If you can't breastfeed or choose not to, SMA First Infant Milk is scientifically formulated to meet your baby's nutritional needs when your baby is not breastfed or for combination feeding. It's suitable from birth and contains a protein profile and a new fat blend closer to that of breast milk, plus Omega 3 & 6 LCPs". Because of these product references, we considered that the e-mail appeared to promote SMA First Infant Milk to mothers having difficulty in breastfeeding or unwilling to breastfeed and was therefore an ad for that product.
We noted that CAP Code rule 15.10 15.10 Except for those in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers are not the general public, marketing communications for infant formula are prohibited. prohibited marketing communications for infant formula, except for those in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers were not the general public. We also noted that this section of the Code had to be read with regard to the Infant Formula and Follow-on Formula Regulations 2007 (the Regulations), as well as the European Regulation (EC) No 1924/2006 on Nutrition and Health Claims made on Foods.
We understood that SMA believed the e-mail to be informational material, not advertising, for the purposes of the Regulations and that it would only have to comply with the part of the Regulations that laid out conditions for the provision of informational or educational material dealing with the feeding of infants. Because the CAP Code rules on the advertising of infant and follow-on formula reflected the Regulations, we considered that the question of whether or not the e-mail breached the Code would be informed by the approach taken in the Regulations towards advertising and informational material.
We noted that the Regulations adopted the definition of an advertisement laid down in the Food Safety Act 1990, which stated that the term "advertisement" included "any notice, circular, label, wrapper, invoice or other document, and any public announcement made orally or by any means of producing or transmitting light or sound", and that the word "advertise" should be "construed accordingly". We considered that this allowed for an e-mail, as a form of "other document", to be an advertisement.
We acknowledged that the recipient of the e-mail appeared to have ticked a box when registering for the SMA Know How baby club to allow SMA to send her "information about milks and bottle feeding". However, we considered that this did not necessarily render the e-mail informational material as opposed to advertising.
We considered that the e-mail featured several characteristics of an ad, both for the SMA brand, with references such as the name and logo, and for a specific product, with pack images and several product characteristic claims. We also considered that its format (an e-mail) was not inconsistent with the definition of advertising in the Food Safety Act 1990, and, by implication, the Regulations.
We noted that the Regulations, from which CAP Code rule 15.10 15.10 Except for those in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers are not the general public, marketing communications for infant formula are prohibited. was derived, prohibited the advertising of infant formula to the general public but did allow for the provision of informational or educational material dealing with the feeding of infants, provided that certain requirements on the inclusion and presentation of specific advice were met. We considered, however, that material which would otherwise be considered an ad could not be said to instead be informational material simply by complying with those requirements.
Because we considered that the e-mail was an advertisement for the purposes of Code rule 15.10 15.10 Except for those in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers are not the general public, marketing communications for infant formula are prohibited. we concluded that it was within the remit of the ASA and breached the Code by promoting infant formula.
On that point, the ad breached CAP Code (Edition 12) rule 15.10 15.10 Except for those in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers are not the general public, marketing communications for infant formula are prohibited. (Infant and Follow-on Formula).
2. Not upheld
We understood that the e-mail had been sent to someone who had signed up to the SMA Know How baby club via a third-party site offering simultaneous registration to numerous baby clubs. We considered that it was clear on that site both that registration would result in contact from the clubs and that SMA Know How was one of those clubs. We acknowledged SMA's statement that the recipient had not de-selected their club but had opted-in to receiving information about milks and bottle feeding, both of which we noted were options open to her. The recipient of the e-mail did not recall signing up to the third-party site and said she would not have ticked a box allowing SMA to send her information about milks and bottle feeding. Although we noted that discrepancy, we considered that SMA had provided a reasonable explanation of how they had obtained consent to send the e-mail and had sent documentation to that effect. We therefore concluded that SMA had not sent the e-mail without explicit consent.
On that point, we investigated the ad under CAP Code (Edition 12) rule 10.13.3 10.13.3 sending marketing communications by electronic mail (excluding by Bluetooth technology) but marketers may send unsolicited marketing about their similar products to those whose data they have obtained during, or in negotiations for, a sale. Data marketers must, however, tell those consumers they may opt out of receiving future marketing communications both when they collect the data and at every subsequent occasion they send out marketing communications. Marketers must give consumers a simple means to do so (Database practice) but did not find it in breach.
Action
The ad must not appear again in its current form. We told SMA not to produce marketing communications for infant formula except in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers were not the general public.
