Background
During the investigation the ownership of the Ribena name and product transferred to Lucozade Ribena Suntory Ltd. Although Lucozade Ribena Suntory was involved in the latter stages of the investigation, GlaxoSmithKline is considered to be the primary advertiser; because they were responsible for the advertising at the time it was published and initially responded to the complaint.
Summary of Council decision:
Four issues were investigated, all of which were Upheld.
Ad description
Claims on www.ribena.co.uk "Ribena Plus Benefits" page stated "Ribena Plus Benefits for you and your family The tasty new Ribena Plus range includes Ribena Plus with vitamin A and vitamin C to help support immunity, and Ribena Plus with calcium for healthy bones ... Did you know that vitamin A not only helps keep your vision in tip-top condition, it's important for skin health and immunity too? ... Vitamin C is one of our favourites: It does so much good stuff! It helps immunity, healthy bones AND it's an antioxidant ... Vitamin E This vital little vitamin is an awesome antioxidant which helps to protect your body cells ...".
Issue
An internet user challenged whether the claims:
1. "Vitamin A ... helps keep your vision in tip-top condition";
2. "Vitamin A ... is important for ... immunity too";
3. "Vitamin C ... it helps immunity", and
4. "Vitamin C ... it's an antioxidant"
were authorised health claims on the EU Register of Nutrition and Health Claims.
Response
GlaxoSmithKline said the health benefits described on the web page had all been endorsed by the European Food Standards Authority (EFSA). In each case there was an authorised health claim on the EU Register of Nutrition and Health Claims for Foods (the EU Register) for the vitamin or mineral and the claimed health relationship. GlaxoSmithKline acknowledged that some of the authorised claims on their web page had been reworded in order to keep the language understandable and more consumer friendly. However, they believed that the meaning remained faithful to the authorised health claims and therefore complied with the CAP Code. They said the Ribena Plus drink range met the conditions of use for the vitamin A and C authorised claims used in the ad.
1. GlaxoSmithKline said they were aware that some flexibility of wording was possible in order to help consumer understanding provided the reworded claim had the same meaning as the authorised claim.
GlaxoSmithKline believed the claim "Vitamin A ... helps keep your vision in tip-top condition" was consistent with the authorised claim, which was 'Vitamin A contributes to the maintenance of normal vision'. They said using "tip-top" did not suggest any superiority, but the normal, healthy condition of a person's vision, and the word "helps" was similar to 'supports', which they understood that guidance from the Department of Health (DH) suggested was a suitable alternative to 'contributes'. GlaxoSmithKline believed their claim was acceptable, because it expressed the same relationship between vitamin A and normal, healthy vision as the authorised claim and had not suggested any benefit over and above the authorised claim.
2. & 3. GlaxoSmithKline said the relevant authorised claim on the Register for vitamins A and C were that each vitamin 'contributes to the normal function of the immune system'. They said, as with point 1 above, they had used alternative wording for 'contributes to', which they believed was consistent with DH guidance. They changed 'immune system' to "immunity", because they believed it had wider usage and was likely to be better understood by the general public. They viewed both terms as suggesting support of the body's ability to fight infection and their use of the term "immunity" had not suggested any benefit above and beyond 'immune system'.
4. The relevant authorised claim for vitamin C was 'contributes to the protection of cells from oxidative stress'. GlaxoSmithKline understood that vitamin C was scientifically classified as an antioxidant and believed that EFSA had grouped together a variety of oxidative and antioxidant claims when evaluating evidence for vitamin C. GlaxoSmithKline therefore believed that "antioxidant" and "protection from oxidative stress" were broadly synonymous and by substituting "antioxidant" for the authorised claim had simply made the claim clearer for consumers; it had not made the claim any stronger.
Assessment
1. Upheld
The ASA noted that under EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation) only health claims which appeared on the list of authorised health claims (the EU Register) could be made in ads promoting foods, which included drinks, and that marketers must also ensure that they meet the conditions of use associated with the claims in question.
We noted marketers could exercise some flexibility in rewording authorised claims, provided that the reworded claim was likely to have the same meaning for consumers as the authorised health claim and the aim of the rewording was to aid consumer understanding, and taking into account factors such as linguistic or cultural variations and the target population. The CAP Code, which reflected the requirements of the Regulation, stated that health claims must be presented clearly and without exaggeration.
We understood the product met the conditions of use associated with the authorised claim and considered whether the claim "Vitamin A ... helps keep your vision in tip-top condition" had retained the meaning of the authorised claim "Vitamin A contributes to the maintenance of normal vision". We noted "helps keep" had been substituted for "contributes to", but considered that the revised claim would have the same meaning to consumers and the rewording did not exaggerate the authorised claim. We concluded it was acceptable to reword that aspect of the authorised claim in that way.
However, we considered that "[keep] your vision in tip-top condition …" would be understood by consumers to mean 'very best' or 'optimum' vision rather than the "maintenance of normal vision". We considered the reworded claim therefore exaggerated the effects of the substance as stated in the authorised health claim.
We therefore concluded that, because the claim "Vitamin A ... helps keep your vision in tip-top condition" exaggerated the meaning of the authorised claim, it breached the Code.
On this point, the ad breached CAP Code (Edition 12) rules
15.1
15.1
Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Claims must be presented clearly and without exaggeration.
and
15.1.1
15.1.1
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
(Food, food supplements and associated health and nutrition claims).
2. Upheld
We noted the authorised claim "Vitamin A contributes to the normal function of the immune system" had been substituted by the claim "Vitamin A ... is important ... for immunity too". The authorised claim "contributes to" made clear that Vitamin A played a part in the normal function of the immune system and other substances were also involved in the process. We also understood the product met the conditions of use associated with the authorised claim. However, we considered that the substituted wording "is important for" placed extra emphasis on the role of Vitamin A in the process and therefore altered the meaning of the authorised claim.
We understood that, when approving claims for use, which referred to the "normal" functioning of the body, EFSA had assessed the evidence in relation to the normal functioning of the body. We considered that removing "normal" from the authorised claim had changed the meaning of the claim by implying that Vitamin A would optimise the immune system rather than contributing to its normal function.
We also considered that replacing the authorised claim "function of the immune system" with "immunity" had changed the emphasis from a claim that the vitamin contributed to the workings of the immune system to a claim that it could help provide the immunity against infections and diseases.
We concluded that the reworded claim "Vitamin A ... is important ... for immunity too" was unlikely to have the same meaning for consumers as that of the authorised health claim and had therefore breached the Code.
On this point, the ad breached CAP Code (Edition 12) rules
15.1
15.1
Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Claims must be presented clearly and without exaggeration.
and
15.1.1
15.1.1
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
(Food, food supplements and associated health and nutrition claims).
3. Upheld
We understood the product met the conditions of use associated with the authorised claim. GlaxoSmithKline altered the wording of the authorised claim "Vitamin C contributes to the normal function of the immune system" to "Vitamin C ... it helps immunity". As stated in point 1 above, we considered "helps" as a substitute for "contributes to" was acceptable rewording and did not alter the meaning of the authorised claim. However, as stated in point 2 above, we considered that "immunity" as a replacement for "normal function of the immune system" changed the meaning and would be understood by consumers as a claim that Vitamin C would optimise their general immunity rather than help the normal workings of the immune system. We therefore concluded that the claim "Vitamin C ... it helps immunity" breached the Code.
On this point, the ad breached CAP Code (Edition 12) rules
15.1
15.1
Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Claims must be presented clearly and without exaggeration.
and
15.1.1
15.1.1
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
(Food, food supplements and associated health and nutrition claims).
4. Upheld
Although we understood that the product met the conditions of use associated with the authorised claim, we understood that EFSA had considered various claims in relation to the effects of Vitamin C, but had rejected all claims that used the term "antioxidant". They had concluded that the wording, justified by the evidence, was "Vitamin C contributes to the protection of cells from oxidative stress". Although there was some flexibility in rewording authorised claims, we considered that the claim "Vitamin C ... it's an antioxidant" did not convey to consumers the full meaning of the authorised health claim. We therefore concluded that it breached the Code.
On this point, the ad breached CAP Code (Edition 12) rules
15.1
15.1
Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Claims must be presented clearly and without exaggeration.
and
15.1.1
15.1.1
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
(Food, food supplements and associated health and nutrition claims).
Action
The claims must not appear again in their current form. We told GlaxoSmithKline to ensure they retained the meaning of, and did not exaggerate, any authorised health claims if they reworded them to aid consumer understanding.
