Background
Summary of Council decision:
Four issues were investigated, all of which were Upheld.
The ad appeared in February 2021, and we therefore assessed it under the Code rules interpreted in the light of changes in the background law resulting from the UK’s exit from the EU, as per CAP/BCAP’s statement on EU exit dated 22 December 2020.
Ad description
A website for the baby formula manufacturer Kendamil, www.kendamil.com, seen on 8 February 2021, featured a page titled “Reviews”. The page featured images of people with their babies; hovering over each image brought up a customer-submitted review of Kendamil’s products. The reviews featured a number of claims, including “… my son is 9 months old & been on it since birth”, “My daughter was suffering with colic and constipation but as soon as I switched to this milk it stopped straightaway…”, “After breastfeeding I was worried about the transition to formula. I researched high and low for a formula brand … that would benefit my daughter the way breastmilk had”, “... not only is great for her development, but also tastes yummy!”. Many of the reviews featured images of children who appeared to be under six months old.
Issue
The ASA received two complaints, including one from the British Specialist Nutrition Association (BSNA).The complainants challenged whether the ad breached the Code because:
1. the ad referred to infant formula, and confused between infant formula and follow-on formula.
And whether the claims:
2. “benefit my daughter the way breastmilk had” discouraged breastfeeding;
3. “great for her development” was a health claim about infant formula; and
4. “colic and constipation … stopped straightaway…” stated or implied that a food prevented, treated or cured human disease.
Response
Kendal Nutricare Ltd t/a Kendamil said that quotes in the ad had been automatically pulled from consumer reviews left on Facebook and other third-party websites and integrated into their website. They said that as a result they did not have any editorial control over the contents of those reviews.
1. Kendamil said that they did not think the claims made in the ad confused between infant formula and follow-on formula.
2. They said they did not believe the claim “benefit my daughter the way breastmilk had” discouraged breastfeeding. The claim was intended to mean that the formulas they produced were the closest to breastfeeding.
3. Kendamil provided evidence which they said substantiated the claims “benefit my daughter the way breastmilk had”, and “great for her development”.
4. Kendamil provided evidence which they said substantiated the claim “colic and constipation … stopped straightaway…”.
Assessment
The ASA noted Kendamil’s comments that the reviews had been pulled through to their website from third-party review platforms and social media, and their view that they therefore were not responsible for the contents of the ad. We considered that the third-party reviews were user-generated content that had been adopted and incorporated into Kendamil’s own website. We considered that the website was under Kendamil’s control, and was directly connected with the supply of goods through their online shop. The website and its contents were therefore an ad for the purposes of the Code.
1. Upheld
The CAP Code stated that except for those in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers were not the general public, marketing communications for infant formula were prohibited. Additionally, marketing communications must not confuse between infant formula and follow-on formula.We considered that consumers would understand the statement “… my son is 9 months old & been on it since birth” to mean that the ad was promoting Kendamil’s infant formula. We further considered that the babies featured were not clearly identifiable as being over the age of six months and that contributed to the impression that it was an ad for infant formula. We therefore considered that the ad had the effect of marketing infant formula.
We also considered that the lack of clarity in many of the reviews as to whether the claims were referring to infant or follow-on formulas, meant that it was ambiguous as to whether the ad was referring to infant or follow-on formulas. We therefore considered that the ad also confused between infant and follow-on formulas.
Because the ad had the effect of marketing infant formula, which was prohibited under the Code, and because it confused between infant and follow-on formulas, which was also prohibited under the Code, we concluded that it had breached the Code.
On that point, the ad breached CAP Code rules 15.10 15.10 Except for those in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers are not the general public, marketing communications for infant formula are prohibited. and 15.10.1 15.10.1 Marketing communications must not confuse between infant formula and follow-on formula. (Infant and follow-on formula).
2. Upheld
According to Commission Delegated Regulation (EU) 2016/127 on the specific compositional and information requirements for infant and follow-on formula, (the Regulation) marketers should not discourage breastfeeding. The Department of Health and Social Care’s guidance on the matter stated “… companies will therefore need to ensure that formula advertising does not … include pictures or text which directly or indirectly relate or compare products to breastmilk”, and “Non-mandatory text or pictures in infant formula and follow-on formula advertisements must not make reference to ‘breastmilk’, ‘breastfeeding’, ‘moving on from breastfeeding’ or ‘closer to/inspired by breastmilk’”.
We considered that consumers would understand the claim “benefit my daughter the way breastmilk had” as meaning that Kendamil’s products were a very close equivalent to breastmilk, which would provide almost exactly the same nutritional and other benefits to babies as breastmilk. We considered that could encourage consumers to use formula instead of breastmilk, and therefore that the ad had the effect of discouraging breastfeeding. We concluded that the ad breached the Code on that basis.
On that point, the ad breached CAP Code (Edition 12) rules 1.10 1.10 Marketers have primary responsibility for ensuring that their marketing communications are legal. Marketing communications should comply with the law and should not incite anyone to break it. (Legality).
3. Upheld
According to the Regulation, nutrition and health claims should not be made by marketers on infant formula. The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food, drink or ingredient and health.
We considered the claims “benefit my daughter the way breastmilk had” and “great for her development” to be health claims for the purposes of the Code. We considered that consumers would understand those claims, when taken alongside the images of a child who appeared to be under six months old, as referring to infant formula.
Because the ad had made health claims for infant formula, we concluded that it had breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 1.10 1.10 Marketers have primary responsibility for ensuring that their marketing communications are legal. Marketing communications should comply with the law and should not incite anyone to break it. (Legality).
4. Upheld
The CAP Code stated that claims which stated or implied a food could prevent, treat or cure human disease were prohibited for foods; that requirement also applied to infant and follow-on formulas. We considered that consumers would understand from the claim “colic and constipation … stopped straightaway” that using Kendamil’s products could prevent and treat colic and constipation in babies. We therefore considered the ad made disease treatment claims for a food and concluded that it breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 15.6.2 15.6.2 Claims that state or imply a food prevents, treats or cures human disease. Reduction-of disease-risk claims are acceptable if authorised by the European Commission (Food, food supplements and associated health or nutrition claims).
Action
The ad must not appear again in the form complained about. We told Kendal Nutricare Ltd t/a Kendamil to ensure that their future marketing communications did not refer, either implicitly or explicitly, to infant formula and did not confuse between infant and follow-on formulas; make claims or statements that discouraged breastfeeding; make health or nutrition claims for infant formula; and state or imply that a food could prevent, treat, or cure human disease.
CAP Code (Edition 12)
1.10 15.10 15.6 15.6.2 15.10.1
