Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A website for Taywell Ice Creams, www.sweetrebellion.co.uk, seen on 29 March 2016. Text on the home page stated "say NO to ADDED SUGAR!" When the cursor hovered above the text, a pop-up text box appeared which stated, "Refined Sugar Free Ice Cream | Sweet Rebellion". Text under the heading "THE REBEL'S MANIFESTO" further down the page stated, "WE SWEET REBELS PROMISE THAT OUR ICE CREAM WILL ALWAYS BE: ... An Extra Source of Calcium and B Vitamins".
Issue
Perfect World Ice Cream Company Ltd challenged the following claims:
1. "Say no to added sugar", because they believed the products did not meet the conditions of use to carry the relevant nutrition claim;
2. "Refined sugar free", because they believed it was not a permitted nutrition claim; and
3. "An extra source of calcium and B vitamins", because they believed it was not a permitted nutrition claim and that it did not meet the conditions of use.
Response
1. Taywell Ice Creams Ltd (Taywell) stated that they did not consider the claim “say no to added sugar” to be a nutrition claim; they said it was merely their company slogan. They also stated that they did not make any “no added sugar” claims on their website.
2. Taywell said the claim would only appear if the cursor hovered above the homepage of their website. They stated that they were not aware of it until the complaint was brought to their attention and that they had since amended the claim.
3. Taywell stated that the claim “source of calcium and B vitamins” was a permitted nutrition claim in the Annex to EU Regulation 1924/2006 on nutrition and health claims made on foods (the Regulation). They believed the wording “extra” used in the claim did not render the claim to be equivalent to an “increased [name of nutrient]” nutrition claim under the Regulation.
Assessment
THIS RULING REPLACES THAT PUBLISHED ON 10 AUGUST 2016. THE WORDING HAS BEEN CHANGED BUT THE ‘UPHELD’ DECISION REMAINS THE SAME.
The ASA noted that, according to the Regulation, which was reflected in the CAP Code, only nutrition claims listed in the Annex of the Regulation (the Annex) were permitted in ads promoting foods, and that marketers must ensure that they met the conditions of use associated with the claims in question. We also noted that nutrition claims were defined in the Regulation as any claim which stated, suggested or implied that a food had particular beneficial nutritional properties, including due to the nutrients or other substances it contained, contained in reduced or increased proportions, or did not contain.
1. Upheld
We considered that the claim “say no to added sugar” was a nutrition claim for the purposes of the Regulation, which was likely to have the same meaning to consumers as the permitted nutrition claim “with no added sugars”. According to the conditions of use associated with the relevant nutrition claim, it could only be made where the product did not contain any added mono- or disaccharides or any other food used for its sweetening properties.
We noted from Taywell’s website that their range of products contained the sweeteners erythritol and steviol glycosides, as well as agave nectar and/or jaggery. We understood that the addition of sweeteners alone was likely to comply with the conditions of use for the “with no added sugars” nutrition claim. However, given that the products also contained agave nectar and/or jaggery, which we understood were used for their sweetening properties, we considered that the claim did not comply with the conditions of use associated with the permitted “with no added sugars” nutrition claim in the Annex. We therefore concluded that the claim breached the Code.
On that 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 nutritional claims).
2. Upheld
We considered that the claim “refined sugar free” was likely to be understood to be a reference to the beneficial nutritional properties of the range of ice creams, on the basis that it did not contain refined sugar, and therefore considered that it was a also nutrition claim for the purposes of the Regulation. However, as above, only nutrition claims listed in the Annex were permitted in ads for foods. We noted that the claim “refined sugar free” was not a permitted nutrition claim and therefore concluded the use of such claim was in breach of the Code.
On that 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 nutritional claims).
3. Upheld
We considered the wording of the claim “an extra source of calcium and B vitamins” was ambiguous, and that it could be understood by consumers to mean that the range of ice creams in question was a food source of calcium and B vitamins, in addition to those from other foods. We considered consumers could also interpret the claim to mean that the range of ice creams contained “extra” calcium and B vitamins.
We considered that “an extra source of calcium and B vitamins” was in either case a nutrition claim, which was likely to take the same meaning as either the permitted nutrition claim “source of [name of vitamin/s] and/or [name of mineral/s]”, or of “high [name of vitamin/s] and/or [name of mineral/s]” respectively. However, we had not seen any evidence that the claim complied with the conditions of use associated with either of those permitted nutrition claims. We therefore concluded that the claim “an extra source of calcium and B vitamins” was in breach of the Code.
On that 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 ad must not appear again in its current form. We told Taywell Ice Creams Ltd to ensure in future that they did not make nutrition claims that were not permitted by the Annex of the Regulation, or that did not comply with the conditions of use associated with permitted nutrition claims.
