Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Claims about the product crystallised coconut blossom nectar on the website www.tiana-coconut.com, seen on 3 February 2016, included “guilt free sugar substitute”.
Issue
The complainant challenged the claims below, which were subject to the requirements of Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (the Regulation), as reflected in the CAP Code:
1. “guilt free”; and
2. “sugar substitute”.
Response
1. & 2. Tiana Fair Trade Organics Ltd said the claim was intended to state “guilt free alternative sugar”, rather than “guilt free sugar substitute”, and it had been amended since the ASA had contacted them. They believed that made clear the product was a sugar. They said “guilt free” was intended to refer to the product’s low glycaemic index (GI), which, at 35, was the lowest possible GI. That meant the product did not increase glucose content in the blood, when compared to the normal GI of white sugar (100). They provided a document from a food research institute on the GI of the product.
Tiana Fair Trade Organics said the product could be used as an alternative to cane sugar. However, they did not claim that it was sugar free, because it contained all elements that were also in sugar, fructose, sucrose and glucose. They believed “guilt free” did not suggest the product was sugar free and pointed out that the website stated “… sugars in TIANA Coconut Nectar have not been caramelised from heat”, which they said also made clear that it contained sugar. They said they did not intend to make health claims for the product, but the ad stated only that it was a sugar alternative without mentioning what the product could do for health or how it would affect blood glucose. They referred to a health claim for fructose that was authorised on the EU Register.
Assessment
1. & 2. Upheld
The ASA noted that under the Regulation, which was reflected in the CAP Code, only claims which appeared on the list of authorised health claims (the EU Register) could be made in ads promoting foods, and that marketers must also ensure that they met the conditions of use associated with the claims in question. The CAP Code defined a health claim as any claim that stated, suggested or implied that a relationship existed between a food category, a food or one of its constituents and health. The CAP Code also stated that only nutrition claims listed in the updated Annex of the Regulation (as reproduced in the EU Register) may be used in marketing communications.
We considered the claim “guilt free sugar substitute”, as the claim appeared in the ad on two occasions, could be understood to be a reference to a general benefit of the product for overall good health or health-related well-being (with a comparative element), because it suggested it was beneficial in comparison to sugar. We considered that was particularly the case in the context of other claims in the ad such as “Superfoods” and “healthier alternative”, which were also general health claims. However, such references to general benefits for health were acceptable only if accompanied by a specific authorised health claim. We noted Tiana Fair Trade Organics’ reference to a (comparative) health claim that was authorised on the Register for fructose (“consumption of foods containing fructose leads to a lower blood glucose rise compared to foods containing sucrose or glucose”). The authorised claim, however, was not included in the ad (and the advertiser had not demonstrated that the product complied with the conditions of use for that claim). We also understood there were no authorised health claims in relation to GI, and therefore that health claims related to GI could not be made in advertising. We were concerned that the claim could be interpreted as a general health claim, but was not accompanied by a relevant specific authorised health claim, which in this case would also need to have been authorised with a comparative element.
We also considered the claim could be understood to be a nutrition claim: that the product had “reduced sugars” (when compared to sugar itself); and/or, if read alone, because it was a “guilt free sugar substitute”, that it was “sugar-free” (although we acknowledged that references elsewhere in the ad were likely to be understood to mean the product did contain sugars). However, the advertising claim in any case did not reflect the wording of a permitted nutrition claim and, again, Tiana Fair Trade Organics had not demonstrated that the product met the conditions of use to allow it to carry such a claim.
We noted Tiana Fair Trade Organics had amended the claim to state “guilt free alternative sugar”, but considered that was likely to be interpreted by consumers in similar ways as set out above. For the reasons given, we concluded that the ad breached the Code.
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.
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.
and
15.2
15.2
References to general benefits of a nutrient or food for overall good health or health-related well-being are acceptable only if accompanied by a specific authorised health claim.
(Food, food supplements and associated health or nutrition claims).
Action
The ad must not appear again in its current form. We told Tiana Fair Trade Organics Ltd to make references to general benefits of a product for overall good health or health-related well-being only if they were accompanied by a relevant specific authorised health claim. We also told them to make nutrition claims only if they were permitted under the Regulation and to ensure they were in a position to demonstrate that products met the conditions of use for any health or nutrition claim they made.
