Ad description
A paid-for Facebook post and a website ad for The Skinny Food Co products:
a. The home page of the website www.skinnyfoodco.com, seen on 22 December 2019, included the text “SKINNY SAUCE - Virtually Zero® Calorie, SUGAR FREE, FAT FREE SAUCES”. Additional text stated “Time to finally achieve guilt free sauce dippin'/dunkin' [sic] at dinner time! The Skinny Food Co Skinny Sauces are Virtually Zero® Calorie, Zero Sugar, Zero Fat *Per Serving* - GUILT FREE Sauces are a fantastic way to enjoy with your meal and much more by adding a yummy flavour to enhance the taste even further. Unlike other sauces containing tonnes of calories and bad ingredients we use vigorously tested ingredients and have spent a long time formulation [sic] and perfecting our recipes.”
b. The paid-for Facebook post, seen on 11 January 2020, included the text “0 Calorie Syrups, Sauces, Healthy Snacking, Vegan Friendly, Loved by Fitness Members, Slimmers, Diabetics, Allergen Free, Families & Children”. Beneath the caption, an image of their product ranges showed Skinny Sauce, Skinny Syrup and #Not Guilty Jam in various flavours. The product label for the Tomato Ketchup and Chip Shop Curry Skinny Sauces stated “Zero Calorie”.
Issue
Two complainants challenged the claims “Virtually Zero® Calorie” and “Zero Calorie” as made in relation to the Skinny Sauce product range, because they believed that some of the products in the range did not meet the conditions of use to carry the relevant permitted nutrition claim.Response
Not Guilty Food Co Ltd t/a The Skinny Food Co said they had trademarked “Virtually Zero” for their ‘Skinny Sauces’ product range. They believed it could therefore be used in relation to that product range. The sauces were very low in calories and so were described as being “Virtually Zero Calories”. The text on their bottles stated “Virtually Zero” and made no direct link to calories on the front of the bottle. They had also asterisked the claim on their website to show what was meant by the claim. They said that their syrups were zero calories and their sweet syrups were under 4 calories per 100 ml. Those products were described as “zero calories”.
The Skinny Food Co said that their product labelling was signed off by a third-party food-label checking company as being compliant with UK food labelling requirements; they provided a report from that company. With regards to ad (b), they did not intend to refer to the sauce as zero calorie and they used a comma to separate the text 'Zero Calorie Syrup, Sauces, Healthy Snacking' on the caption.
Assessment
Upheld
Under the CAP Code, only nutrition claims listed in the Annex of Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Annex), or claims that would have the same meaning to consumers, can be used in marketing communications.
The ASA considered that the claim “0 Calorie … Sauces” and the “Zero Calorie” claim on the labels of two Skinny Sauce products visible in ad (b) would be understood by consumers to mean that the sauces did not contain any calories. We considered that the claim "Virtually Zero® Calorie", which was made in relation to the Skinny Sauces product range in ad (a), would be understood by consumers to mean that the sauces had almost no calories in them, i.e. that they had a negligible calorific value. We considered that the claim would therefore also have the same meaning to consumers as a claim that the sauces did not contain any calories. We considered the advertising claims “Zero Calorie” and “Virtually Zero® Calorie” therefore had the same meaning as the permitted nutrition claim "energy-free", which was listed in the Annex.
According to the conditions of use associated with that claim, the product must not contain more than 4 kcal (17 kJ) per 100 ml. We noted that ad (a) referred to the products being “Virtually Zero® Calorie” per serving but the conditions of use for the “energy-free” claim required that the calorific calculation was made on a per 100 ml basis rather than on a per serving basis.
We understood that all of the products in the Skinny Sauces range contained more than 4 kcal per 100 ml. For example, the Smokey BBQ flavour sauce contained 24 kcal per 100 ml, the Garlic & Herb flavour sauce contained 13 kcal per 100 ml, and the Tomato Ketchup flavour sauce and Chip Shop Curry flavour sauce shown in ad (b) contained 26 kcal and 17 kcal per 100 ml respectively. Therefore the products did not comply with the conditions of use for an “energy-free” nutrition claim. Article 1(3) of Regulation (EC) 1924/2006 on nutrition and health claims made on foods allowed that a trade mark or brand name appearing in the advertising of a food, which may be construed as a nutrition or health claim, may be used provided that it was accompanied by a permitted nutrition or authorised health claim in that advertising. In such instances the accompanying nutrition or health claim must be related to the nutrition or health claim made in the trade mark or brand name.
The claim “Virtually Zero” was trademarked. As referenced above we considered that when accompanied by a reference to calories, the trademark would be construed as a nutrition claim that the products it was made in relation to did not contain any calories. The trade mark “Virtually Zero”, when associated with a reference to calories, must therefore either be a permitted nutrition claim, or be accompanied by a permitted and related nutrition claim. The only permitted nutrition claim which was related to a “Virtually Zero®” calorie claim was an “energy-free” claim. However, that claim could not be made in relation to any of the Skinny Sauce products because they did not meet the conditions of use for that claim. We therefore considered that the claim “energy-free” (or any claim with the same meaning, such as “Zero Calorie”) could also not be used to accompany the trademark “Virtually Zero” when it would be construed as relating to the calorific value of the Skinny Sauce products.
We considered that because the products in the “Virtually Zero®” Skinny Sauce range did not meet the conditions of use for an “energy-free” nutrition claim, the claims “Virtually Zero Calorie®” and “Zero Calorie” made in relation to those products breached the Code. Ads (a) and (b) 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 association health or nutrition claims).
Action
The ads must not appear again in their current form. We told Not Guilty Food Co Ltd t/a The Skinny Food Co to remove the claims “Zero Calorie” and “Virtually Zero Calorie” from advertising for their Skinny Sauce range, and to remove any similar claims which would be understood as meaning that products in the Skinny Sauce range were calorie-free or energy-free. We told them not to make nutrition claims in future unless they could demonstrate that the products complied with the associated conditions of use.
