Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A Facebook post by The Skinny Food Co, seen on 15 April 2024, showed images of two glass mugs of coffee. The mugs and the contents appeared to be identical apart from a pixelated Starbucks logo on one and The Skinny Food Co’s logo on the other. Text above the Starbucks coffee stated “380 Calories Per Serving”. Text above The Skinny Food Co’s mug stated “11 Calories Per Serving”. Text elsewhere in the post stated “Upgrade your morning coffee! Try a low calorie swap with the Skinny Food Co” and “Low Calorie, Coffee Swaps”.
Issue
The complainant challenged whether the following claims were in breach of the Code:
1. the claim “Low calorie”, in relation to The Skinny Food Co’s coffee products; and
2. the calorie content comparison between The Skinny Food Co’s product and the competitor’s product.
Response
1. Not Guilty Food Co Ltd t/a The Skinny Food Co supplied information which they believed showed that each of the products referred to in the ad met the conditions of use set out in the Great Britain Nutrition and Health Claims Register (the GB NHC Register) for the “low energy” nutrition claim.
They said the coffee made from their products had 11 calories in it. It was comprised of: a 3 g serving of coffee granules, which contained 10 kcal; a 10 ml serving of creamer which contained 1 kcal; and a 10 ml serving of salted caramel syrup and a 10 ml serving of Barista Syrup, both of which contained zero calories.
2. The Skinny Food Co did not reply to this point.
Assessment
1. Upheld
Only nutrition claims authorised on the GB NHC Register could be made in ads promoting food or drink products. The CAP Code defined a nutrition claim as any claim which stated, suggested or implied that a food (or drink) had particular beneficial nutritional properties due to the amount of calories, nutrients or other substances it contained, did not contain, or contained in reduced or increased proportions. In addition, the advertiser must ensure that the product met the conditions of use associated with the authorised claim.
We considered, given the context of the ad, that consumers would interpret the “low calorie” claim to mean that the Skinny Food Co mug of coffee shown and all other products referred to, were low calorie.
The GB NHC Register allowed a “low energy” claim, which we considered equivalent to the “low calorie” claim made in the ad, to be made only where a product did not contain more than 40 kcal per 100 g for solids or more than 20 kcal per 100 ml for liquids. For table-top sweeteners the limit of 4 kcal per portion, with equivalent sweetening properties to 6 g of sucrose (approximately one teaspoon of sucrose) applied.
We therefore expected to see evidence that the coffee shown, and all the products referred to, met those conditions of use.
The glass of coffee shown in the ad appeared to be a frappuccino, with whipped cream on the top and caramel syrup drizzled on the cream. We considered the cup of coffee which The Skinny Food Co described as coming to 11 kcal was unlikely to be the same as the one shown in the ad. The coffee shown in the ad had a thick layer of whipped cream on top as well as the coffee itself being milky, which we considered was unlikely to be obtained from a 10 ml serving of creamer. We considered The Skinny Food Co had therefore not provided evidence that the coffee shown in the ad met the conditions of use for a "low energy" nutrition claim, and we concluded the claim therefore breached the Code.
Additionally, the ad's caption stated "Try a low calorie swap with the Skinny Food Co" and "Low Calorie Coffee Swaps - Hundreds of coffee syrups, creamers & flavour shots to choose from". We considered consumers would understand that to mean that all the products were "low calorie". The Skinny Food Co therefore needed to provide us with information which showed all those products met the conditions of use for a "low calorie" nutrition claim. However, they had only supplied nutritional information for the creamer, salted caramel syrup and Barista Syrup. Because we had not seen evidence that all the products referenced in the ad met the condition of use for a "low calorie" nutrition claim, we concluded those claims also breached the Code.
On that point the ad breached CAP Code (Edition 12) rules 15.1 and 15.1.1 (Food, food supplements and associated health or nutrition claims).
2. Upheld
The ad featured two identical looking coffees from two different brands with the calorie comparison between them highlighted – the Skinny Food Co coffee was shown as having a much lower calorie content. We considered that was equivalent to the "reduced energy" comparative nutrition claim on the GB NHC Register.
Comparative nutrition claims must meet the conditions of use associated with the permitted claim and must compare the difference in the claimed nutrient to a range of foods in the same category. A comparison with a single product, however, was permitted as long as that product was representative of products in its category. The difference in the quantity of a nutrient or energy value must be stated in the marketing communication and must relate to the same quantity of food.
The advertiser had not provided complete information about the calorific content of their coffee as shown in the ad. They also had not provided any information about the nutritional content of the comparator product or similar products from other coffee shops to show that the comparator product was representative of products in the category. Without that information, we considered The Skinny Food Co had not shown that the stated calorific content of the comparator product was accurate, that the claim met the conditions of use for a "reduced energy" comparative nutrition claim, that they had compared products in the same food category or that the competitor product they had used for the comparison did not have a composition which allowed it to bear a nutrition claim. We therefore concluded that the calorie content comparison claim breached the Code.
On that point the ad breached CAP Code (Edition 12) rules 15.1, 15.3, 15.3.1 and 15.3.2 (Food, food supplements and associated health or nutrition claims).
Action
The ad must not appear again in the form complained of. We told Not Guilty Food Co Ltd t/a The Skinny Food Co to ensure that when making nutrition and comparative nutrition claims they held evidence to show that the relevant products met the conditions of use for the claim. We also told them to ensure that they held evidence to show that comparative nutrition claims compared products in the same food category, that the comparator product was representative of products in the category, and that the comparator product did not have a composition which allowed it to bear a nutrition claim.
CAP Code (Edition 12)
15.1 15.1.1 15.3 15.3.1 15.3.2
