Background
The ad appeared on 10 June 2020, and we therefore assessed the ad with reference to the law that applied at this time.
Summary of Council decision:
One issue was investigated and Upheld. Two issues were informally resolved after the advertiser said that two of their ads had either been withdrawn already or would be amended.
Ad description
A Facebook post, for The Skinny Food Co, dated 10 June 2020, featured an image with a man holding four spice mixes. On each of the product labels text stated “Skinny Spices”, alongside the names of each mix: “Sriracha Seasoning”, “Meat Seasoning”, “Chips & Wedges” and “Jerk Seasoning”. The post included a caption that stated “Have you checked out our new Skinny Spices? Underneath which a list stated “Natural Ingredients”, “Enhances Flavour”, “Vegan”, “Zero teaspoons of added sugar” and “16 different flavours … Which one will you pick?”.
Issue
Two complainants challenged whether the claim “Skinny Spices” which was subject to Regulation (EC) No. 1924/2006 on nutrition and health claims made on food (the Regulation), as reflected in the CAP Code, breached the Code.Response
Not Guilty Food Co Ltd said that their brand ‘Skinny Food Co’ had a range of products, such as syrups, sauces and seasonings. They said their products were linked to their brand names and were named, for example, ‘skinny sauce’ and ‘skinny syrup’. They said their products were lower in sugar, fat or calories in comparison to similar products in the market place. They said the products were not marketed as 'weight loss' products. Not Guilty Food said they owned the registered trademark ‘Virtually Zero’ and that they used that on their labels where the product was either low sugar, fat free or low calorie. They added that they also owned the registered trademark ‘Skinny Spices’ and that they brought those products to market as they were a lower, if not zero, sugar spice alternative to others available on the market.Assessment
Upheld
The ASA noted that according to EC Regulation 1924/2006 on nutrition and health claims made on foods (the Regulation), which was reflected in the CAP Code, only health claims listed as authorised on the EU Register of nutrition and health claims made on foods (the EU Register) were permitted in marketing communications. Health claims were defined as those that stated, suggested or implied a relationship between a food, or ingredient, and health.
Advertisers must show that health claims were authorised on the EU Register in relation to the relevant foodstuffs contained in that product and that they complied with the related conditions of use. Nutrition claims were defined as those that stated, suggested or implied that a food had particular beneficial nutritional properties, including due to the nutrients or other substances it contained, contained in reduced or increased proportions, or did not contain. Only nutrition claims listed in the Annex of the Regulation were permitted in ads promoting foods, and advertisers must ensure that the food met the conditions of use associated with the claim in question.
We sought a view from the Food Standards and Information Focus Group. Members of the group included enforcement officers from local authorities and membership consisted of representatives from the regional food enforcement groups, Primary Authority supermarkets group and Chartered Trading Standards Institute. In addition the group included invited policy officials as observers from the FSA, DHSC, Defra and Regulatory Delivery as well as representatives from the Association of Public Analysts, the ASA and the Business Expert (Food Standards and Labelling) Group. The Group noted that the ad’s reference to “Zero teaspoons of added sugar” was a nutrition claim. However, they considered that consumers would interpret “skinny” in the brand name “Skinny Spices” to mean the product would help to maintain or lose weight, and it was therefore a health claim. There were no authorised health claims relating to weight management or weight loss for the ingredients in the products included in the Skinny Spices range. The Group considered that even were the Skinny Spices brand name considered to be a general health claim, it would still be understood to relate to weight loss or maintenance, and would therefore need to be accompanied by a specific health claim which was related to weight loss or maintenance as well. None of the products met the conditions of use to carry such a claim.
The Group said that the Regulation also required claims to be based on the actual benefits from the food, compared to similar regular versions. They said that, where “skinny” was interpreted as a health claim, the advertiser was required to be able to show that the products would have the health benefit of weight loss or maintenance, over and above what a regular version of the products would provide. However, they noted that there was little sugar or energy in regular versions of the products and that the advertiser’s brand of “Skinny Spices” would not have a health benefit of weight loss or maintenance, over and above the regular versions. Furthermore, the Group said that were “skinny” interpreted as a nutrition claim, it would have negligible nutritional benefit relative to regular versions of the product, and the amount of the spices used and the nutritional benefit from them were unlikely to be significant.
We considered that on balance, in the context of food, the claim “Skinny Spices” would be understood by consumers as linked to weight loss, or helping to maintain weight when compared to alternative products, and that consuming products in the Skinny Spices range would therefore have those effects. The claim “Skinny Spices”, in the context of the ad, was therefore a health claim for the purposes of the CAP Code. The products in the range would therefore need to contain a substance or substances, in a significant quantity that would produce the physiological effect of weight loss or maintenance, for which there was an authorised health claim relating to weight loss or maintenance. However, there were no such authorised health claims for products in the range, or for substances contained in the products.
We acknowledged that “Skinny Spices” was a registered trademark and Article 1(3) of the Regulation allowed that a trade mark or brand name appearing in the advertising of a food which may be construed as a health or nutrition claim may be used, provided that it was accompanied by a related authorised health or nutrition claim in that advertising. We considered that a trade mark and/or brand name that would be understood as a health claim about weight loss or maintenance must therefore be accompanied by an authorised health claim relating to either weight loss or maintenance. However, the trade marked brand name “Skinny Spices” was not accompanied in the ad by any authorised health claims relating to weight loss or maintenance, and as such, we considered the ad breached the Code.
We further considered that because none of the products in the Skinny Spices range had a composition which allowed them to carry an authorised health claim relating to weight loss or maintenance, the “Skinny Spices” name could not be used in advertising for any of the products in the range. We considered the name “Skinny Spices” would be understood as a health claim which breached the Code for the reasons stated above. Notwithstanding that, we further considered that even if the claim was not understood as such, it would either be a non-permitted nutrition claim (because the products would produce a negligible nutritional benefit compared to regular versions of the product) or a non-permitted general health claim (because the products did not have a composition which allowed them to carry an authorised health claim relating to weight loss or maintenance which could be used to accompany the general health claim). We therefore 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 the form complained about. We told Not Guilty Food Co Ltd not to use the name “Skinny Spices” in relation to any product unless the product contained significant quantities of a substance that would produce the physiological effect of weight loss or maintenance and for which there was an authorised health claim relating to weight loss or maintenance.
