Background
Summary of Council decision:
Two issues were investigated, of which one was Not upheld and one was Upheld.
Ad description
A national press ad, published in the 'i' newspaper, was headed "FOOD YOU CAN TRUST ... Iceland has always led the way in developing Food You Can Trust". Further text included "No horsemeat has ever been found in an Iceland product.* All our burgers are made in the UK from British beef". Text underneath stated "*Recent testing by the Food Safety Authority of Ireland (FSAI) found traces of equine DNA at one tenth of one percent in two Iceland Quarter Pounder burgers. The testing method used by the FSAI was not an accredited test and the current accepted threshold level is 1% (10 times the level reported in the Iceland product). Two subsequent tests of the same batch of burgers carried out by two accredited independent laboratories found no evidence of contamination".
Issue
The complainant challenged whether:
1. the ad was misleading, because the claim "No horsemeat has ever been found in an Iceland product" was contradicted by text which stated that two Iceland burgers had been found to contain 0.1% equine DNA; and
2. the ad denigrated the FSAI.
Response
1. Iceland Foods Ltd (Iceland) said the ad had been published in response to an FSAI report relating to tests which had found horse DNA in beef products sold by a range of retailers. Samples from two Iceland own-label burger ranges had been found to contain traces of horse DNA. One sample had tested positive at 0.1% horse DNA, and the other had tested positive at less than 0.1% horse DNA.
Iceland said the main claim and explanatory text in the ad made a distinction between horsemeat and horse DNA. They considered that this distinction was important and was not contradictory. They said it was widely understood that traces of DNA could be found after only brief contact, and therefore the fact that traces of horse DNA had been detected in the two samples did not necessarily indicate that horsemeat was present. They considered that horse DNA in levels as low as those found in the FSAI tests could have occurred for many reasons, including minor cross-contamination during processing or in the testing laboratories. They highlighted that they had arranged for the remainder of the samples tested by the FSAI to be tested at an independent, accredited laboratory which specialised in testing for horse DNA. The lab reported that no equine DNA could be detected in the samples.
Iceland said that in response to the FSAI's report, retailers had agreed with the UK Food Standards Agency (FSA) that they would carry out comprehensive testing of their beef products. They had agreed that a threshold level of 1% would be applied as a pragmatic distinction between gross contamination or adulteration (at 1% and over) and trace levels of carry-over from one species or product to another (at less than 1%). Iceland considered, given that the FSAI tests had found a maximum of 0.1% horse DNA in the Iceland burgers, that additional tests of the remainder of those samples had not detected horse DNA and that further tests Iceland had had conducted on more samples from their burger-product ranges and other own-label beef products before publication of the ad had not found horse DNA at more than 1%, they were confident that horsemeat had never been found in any Iceland product.
2. Iceland said that in an appearance before a sitting of the Environmental, Food and Rural Affairs Parliamentary Select Committee, held in relation to the FSAI's findings and its potential implications for the UK, the FSA's Chief Executive had confirmed the testing methodology used by the FSAI was used in the United States and Canada, and that the tests had been carried out in accredited laboratories, but that the test itself was not an accredited test. Iceland therefore considered the claim in the ad, that the testing method used by the FSAI was not accredited, was a statement of fact supported by comments made by the FSA.
Iceland said that after publication of their ad, the FSAI had contacted them with concerns about the ad. Iceland said that in order to preserve their good working relationship with the FSAI, they amended the ad and published a statement on their website which acknowledged that the FSAI's test results were valid and that their testing method was widely used in the burger industry elsewhere in the world. Iceland said the FSAI had informed them they were satisfied with that action.
Assessment
1. Not upheld
The ASA noted Iceland's assertion that although the FSAI's tests had found a maximum of 0.1% horse DNA in two samples from their burgers, further tests commissioned by Iceland on the remainder of those samples were negative for horse DNA (the additional tests). However, we understood that the laboratory at which the additional tests were undertaken only reported positive findings for horse DNA at the level of 1% or more. We therefore understood the additional tests could not call into question the FSAI's test results, because it was not possible for them to detect horse DNA at the levels found by the FSAI's tests. Notwithstanding that, we noted that further tests of samples from the original production runs of the burger ranges had been found to have no horse DNA present in tests that were capable of detecting horse DNA at less than 1%. We also noted that tests of other Iceland beef products conducted before publication of the ad had not detected horse DNA at 1% or more.
We noted that, following the publication of the FSAI's initial test results, and before publication of the ad, both the FSAI and FSA had requested that retailers carry out comprehensive testing of their beef products. Both agencies had referenced a level of 1% or more horse DNA or meat as a 'threshold' level at which positive results would be made public and further investigations would be undertaken. We understood the FSA's reasoning for that was that 1% was a pragmatic level at which to distinguish between gross contamination or adulteration and 'trace' levels of horse DNA or meat. We noted Iceland had intended to convey that distinction in the ad by referring to horse "meat" in the main claim and horse "DNA" in the explanatory text which referenced the 1% 'threshold'. Whilst we acknowledged that the FSA and FSAI did not make such a distinction between horse "meat" and horse "DNA", and that the FSAI were concerned that the 1% threshold level should be seen only as an indication of deliberate adulteration rather than a level of tolerance for contamination, we considered consumers would understand from the ad's explanatory text the distinction that Iceland was conveying – that the level of horse DNA found in two of their burgers was so low that it was regarded as 'trace' levels which were likely to have been caused by accidental carry-over. We concluded the ad was not contradictory or misleading.
On this point, we investigated the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) and
3.13
3.13
Marketing communications must not suggest that their claims are universally accepted if a significant division of informed or scientific opinion exists.
(Exaggeration), but did not find it in breach.
2. Upheld
We acknowledged Iceland had amended the ad following direct contact from the FSAI and we welcomed that action. Nonetheless, we were concerned about the way in which the ad described the FSAI's tests and further tests commissioned by Iceland.
We understood the FSAI had carried out two sets of tests before publishing its findings. The initial tests were not carried out using an accredited test methodology although they were conducted by an independent accredited laboratory, and the methodology used was commonly used in North America. We understood the FSAI then commissioned a second set of tests which reconfirmed the initial test results. Those tests were carried out by another independent accredited laboratory, which did use an accredited test methodology. We therefore understood that the claim "The testing method used by the FSAI was not an accredited test" referred only to the initial tests and not the second – accredited – set of tests. We noted the ad also did not make clear that the test methodology used in the initial tests was an established methodology commonly used in North America. Furthermore, we noted the ad referred to the tests commissioned by Iceland as having been "carried out by two accredited independent laboratories". Whilst we acknowledged that that statement was accurate, we understood that both of the FSAI's sets of tests were also carried out at independent accredited laboratories.
We considered that, by omitting any reference to the second set of accredited tests carried out by the FSAI, by not making clear that the test methodology used in the FSAI's initial tests was an established methodology commonly used in North America, and by highlighting that Iceland's tests were carried out by an accredited independent laboratory whilst omitting that information in relation to the FSAI's tests, the overall impression created by the ad was that the FSAI had not taken due care to ensure the accuracy or validity of the tests used, and therefore that its findings were questionable. We understood that was not the case. We concluded the ad discredited the FSAI and therefore breached the Code.
On this point, the ad breached CAP Code (Edition 12) rule 3.42 3.42 Marketing communications must not discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark. (Imitation and denigration).
Action
The ad must not appear again in its current form. We told Iceland to ensure their advertising did not discredit or denigrate organisations in future.
