Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
The homepage of the Frank’s Ice Cream website, franksicecream.co.uk, seen on 12 October 2022, stated “ICE CREAM DOESN'T HAVE TO BE OFF LIMITS FOR PEOPLE WITH DIABETES. Enjoy Frank's Dialicious range – all the flavour but made with fructose, which leads to a lower blood glusose [sic] rise*. FIND OUT MORE * Compared with foods containing sucrose or glucose”.
The “find out more” button linked to a page that stated “OUR TOP SELLING ICE CREAM IS PREPARED TO A RECIPE MOST SUITABLE FOR DIABETICS & VEGETARIANS ALIKE WITH A MUCH LOVED DELICIOUS CREAMY TASTE!”; “Due to labelling regulations 'Frank's Diabetic Ice Cream' is now named 'Frank's Dialicious Ice Cream'”; and “Frank’s Dialicious is made with fructose, a natural simple sugar found in honey and fruit which carries a lower glycaemic load, or glycaemic index. This means it doesn’t cause a rapid and subsequent large fall in blood glucose levels. Consumption of foods containing fructose leads to a lower blood glucose rise compared to foods containing sucrose or glucose”.
There were two products listed on the page. Dialicious Vanilla Ice Cream contained the claim “Vanilla flavour ice cream made with fructose, which leads to a lower blood glucose rise*. * Made using fructose which leads to a lower blood glucose rise compared to foods containing sucrose or glucose”. Dialicious Strawberry Flavour Ice Cream contained the claim “Strawberry flavour ice cream swirled through a strawberry sauce, both made with fructose, which leads to a lower blood glucose rise*. * Made using fructose which leads to a lower blood glucose rise compared to foods containing sucrose or glucose”.
Below the products, text stated that “We are currently developing a range of diabetic flavours which we hope to launch in the near future”. The page further included a testimonial which stated that “My mum is diabetic, 83 and lives in the Isle of Man. Frank's is the only ice cream she can have, in fact it's the only dessert at all she can have”.
Issue
1. The complainant challenged whether the claim that the ice cream was suitable for diabetics was misleading.
2. The ASA challenged whether the reference to glycaemic index and glycaemic load was an unauthorised specific health claim prohibited by the Code.
Response
1. Frank's Ice Cream Ltd agreed to remove the claims related to diabetes. Furthermore, they said that the testimonial was genuine; however, they understood how it may have been misleading and therefore agreed to remove it from their website.
2. They highlighted that the ad included the claim “Consumption of foods containing fructose leads to a lower blood glucose rise compared to foods containing sucrose or glucose”, which was an authorised specific health claim that could be used in relation to fructose in sugar-sweetened foods, in which the glucose and/or sucrose was replaced by fructose, so that the reduction in content of glucose and/or sucrose was at least 30%. Frank’s Ice Cream said that their ice cream complied with those conditions of use.
Regarding the claim “Frank’s Dialicious is made with fructose, a natural simple sugar found in honey and fruit which carries a lower glycaemic load, or glycaemic index. This means it doesn’t cause a rapid and subsequent large fall in blood glucose levels”. They provided excerpts from a 2018 study relating to the importance of natural simple sugars in diet for preventing and treating diabetes. They also provided information from an Australian organisation of nutrition and dietetic professionals which stated that a low glycaemic index diet was recommended for type 2 diabetes management and that fructose was not as easily metabolised as sucrose, which was why fructose had a lower glycaemic index than sugar.
Assessment
1. Upheld
The ad included the claims: “ICE CREAM DOESN'T HAVE TO BE OFF LIMITS FOR PEOPLE WITH DIABETES […]”; “OUR TOP SELLING ICE CREAM IS PREPARED TO A RECIPE MOST SUITABLE FOR DIABETICS […]“; “Due to labelling regulations 'Frank's Diabetic Ice Cream' is now named 'Frank's Dialicious Ice Cream'”; and “We are currently developing a range of diabetic flavours […]”. A testimonial also stated “My mum is diabetic […] Frank's is the only ice cream she can have, in fact it's the only dessert at all she can have”. The ASA considered those claims would be understood by consumers to mean that the product was particularly suitable for consumption by people with diabetes.
While such claims had previously been allowed, Regulation (EU) 609/2013 on Foods for Specific Groups, which came into force in July 2016 (and was retained in UK law), confirmed that there would no longer be a specific category of dietetic products that could make claims for their suitability for diabetics. Instead, the requirements of Regulation (EU) 1169/2011 on the provision of food information to consumers (also retained in UK law), applied to such statements. This included Article 7(1)(c) which required that food information should not be misleading by suggesting that the food possessed special characteristics when in fact all similar foods possessed such characteristics, in particular by specifically emphasising the presence or absence of certain ingredients and/or nutrients. Those requirements applied to both the labelling and advertising of food products.
We understood that people with diabetes were able to consume all types of food, including ice-cream, within the context of a healthy and balanced diet, and that specialist foods were not necessary. In that context, we considered that claims that stated or implied that a food was suitable for diabetics were misleading, because they implied that no similar foods were suitable for diabetics when that was not the case (i.e. they implied that the food had special characteristics when all similar foods possessed such characteristics).
We therefore concluded that the stated and implied claims in the ad that Frank’s Dialicious Ice Cream was suitable for diabetics, including the claim in the testimonial, were misleading.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 (Misleading Advertising) and 3.47 (Endorsements and testimonials).
2. Upheld
Only specific health claims authorised on the Great Britain nutrition and health claims register (the GB NHC Register) could be made in ads promoting food or drink products. The Code defined health claims as those that stated, suggested or implied that a relationship existed between a food category, a food or one of its constituents and health. Any authorised health claims made in an ad must meet the associated conditions of use. 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, taking into account factors such as linguistic or cultural variations and the target population. Health claims must be presented clearly and without exaggeration.
The ad stated “Frank’s Dialicious is made with fructose, a natural simple sugar found in honey and fruit which carries a lower glycaemic load, or glycaemic index. This means it doesn’t cause a rapid and subsequent large fall in blood glucose levels. Consumption of foods containing fructose leads to a lower blood glucose rise compared to foods containing sucrose or glucose”. We considered this was a specific health claim, because it implied that, because fructose had a lower glycaemic index, it would provide the specific health benefit of a slower and lower rise in blood glucose levels compared to foods containing sucrose or glucose.
We acknowledged that the claim “Consumption of foods containing fructose leads to a lower blood glucose rise compared to foods containing sucrose or glucose” was an authorised claim on the GB NHC Register, in relation to fructose. It could only be used in relation to sugar-sweetened foods in which the glucose and/or sucrose was replaced by fructose, so that the reduction in content of glucose and/or sucrose was at least 30%. Frank’s Ice Cream had stated that their products met the conditions of use for that claim but did not provide us with evidence to demonstrate that was the case.
Notwithstanding that, we noted that the wording of the authorised health claim did not refer to fructose having a lower glycaemic index or load. Nor did it refer to fructose causing a slower rise in blood glucose levels compared to sucrose and glucose. We considered those rewordings of the authorised claim would not have the same meaning for consumers as the authorised wording. Because the ad included a specific health claim that did not accurately reflect the wording of the relevant authorised health claim in the GB NHC Register, and we had not seen evidence that the product met the conditions of use for that authorised health claim, we concluded that the ad breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 15.1 and 15.1.1 (Foods, food supplements and associated health or nutrition claims).
Action
The claims must not appear again in the form complained of. We told Frank’s Ice Cream Ltd to ensure that they did not mislead consumers by stating or implying that their products were suitable for diabetics. We told them not to reword authorised health claims unless the rewording had the same meaning for consumers as the authorised wording on the GB NHC Register, and not to use authorised health claims unless they held substantiation that their products met the relevant conditions of use.
