Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A TV ad for follow-on milk featured babies at the beach. Small on-screen text stated "Use follow-on milk as part of a mixed diet from 6 months." The voice-over stated "Your baby is already a little person with their own personality, who needs your love and attention and the right nutrition." A mother feeding her nine-month-old baby with a bottle was featured and the voice-over continued "Cow & Gate follow-on milk provides calcium for strong bones, iron for brain development ..." On-screen text stated "Calcium for strong bones" and "Iron for brain development".
Issue
Baby Milk Action challenged whether the following claims were authorised on the EU Register and were presented clearly without exaggeration; and were supported by documentary evidence to show that they met the conditions of use as specified in the EU Register:
1. "Cow & Gate follow-on milk provides Calcium for strong bones"; and,
2. "Cow & Gate follow-on milk provides ... iron for brain development".
Response
1. Nutricia Ltd stated that the claim "calcium is needed for normal growth and development of bone in children" or wording with equivalent meaning, had been authorised by the European Commission and was listed in the EU Register of Nutrition and Health Claims for Foods (the EU Register) under Article 14(1)(b) of EC Regulation 1924/2006 (the Regulation). They said the European Food Safety Authority (EFSA) identified the target population as children and adolescents up to 18 years of age and the claim could be used only for food which was at least a source of calcium as referred to in the claim as listed in the Annex to the Regulation.
They stated that Cow & Gate Follow-on provided a source of calcium (minimum 15% as required by the Annex to Regulation 1924/2006), in that the recommended daily quantity of follow-on milk provided 116% of the recommended nutrient intake for calcium, which was in accordance with the Nutrition and Health Claims Regulation.
They stated that, on the basis that a normally developed bone was a strong bone, they decided to use that equivalent meaning.
2. Nutricia Ltd said the claim "Iron contributes to normal cognitive development of children" or wording with equivalent meaning, had been authorised by the European Commission and was listed in the EU Register. The EFSA identified the target population as children and adolescents up to 18 years of age. They said the claim could be used only for food which was at least a source of iron as referred to in the claim as listed in the Annex to the Regulation.
They stated that Cow & Gate Follow-on provided a source of iron (minimum 15% as required by the Annex to the Regulation) in that the recommended daily quantity of follow-on milk provided 77% of the recommended nutrient intake for iron. They stated that was in accordance with the Nutrition and Health Claims Regulation.
They stated that their work with consumers showed that the word 'cognitive' was poorly understood and they had therefore sought to find a word of equivalent meaning. They stated that the journal Cognitive Development defined the topic as the development of perception, memory, language, concepts, thinking, problem solving, metacognition, and social cognition. They felt that it would be misleading to pick out any one of those skills, and that using a generic term such as 'brain development', as used by the Birkbeck University of London Centre for Brain and Cognitive Development, was more likely to be understood by consumers.
Clearcast stated that they supported Nutricia's response.
Assessment
1. Upheld
The ASA noted that under EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation) only health claims which appeared on the list of authorised health claims (the EU Register) could be made in ads promoting foods (including drinks) and that marketers must also ensure that they met the conditions of use associated with the claims in question.
We acknowledged that the claim "calcium is needed for normal growth and development of bone in children" appeared on the list of authorised health claims. We accepted that the product met the conditions of use associated with that claim.
We understood that the Regulation allowed for a degree of flexibility in the wording used and that claims did not have to be worded exactly as they were on the EU Register, provided that the reworded claim was likely to have the same meaning for consumers as that of an authorised health claim and that the aim of the rewording was to aid consumer understanding, taking into account factors such as linguistic or cultural variations and the target population. We also consulted guidance on the General Principles on Flexibility of Wording for Health Claims from the Department of Health (DH).
We considered whether the health claim "provides calcium for strong bones" had retained the meaning of the authorised claim that the advertisers had submitted in support of the claim: "calcium is needed for normal growth and development of bone in children".
We considered that the ad was clearly promoting follow-on milk, a product for babies aged 6 to 12 months, and, in that context, the removal of the reference to children from the claim was unlikely to breach the Code.
We noted that the advertisers had replaced "calcium is needed for ..." with "provides calcium for ...". Although we considered that a substitution of that type could change the emphasis of, or exaggerate, an authorised claim, we considered that, in the context of the ad and the claim in full, the substitution of "calcium is needed for ..." with "provides calcium for ..." was unlikely to breach the Code.
We noted that the advertisers had replaced "normal growth and development of bone" with "strong bones". We understood that, when approving claims for use, which referred to the "normal" functioning of the body, the EFSA had assessed the evidence in relation to the normal functioning of the body.
We also noted that the DH guidance advised that a claim must not be made 'stronger' than the authorised claim. We noted the BCAP Code required that health claims should be presented clearly and without exaggeration, in relation to the authorised claim on which they were based.
We considered that a claim that a product provided calcium "for strong bones" implied a greater health effect than a claim that calcium was needed "for normal growth and development of bone". On that basis, we did not consider that a reference to "strong bones" equated to a reference to "normal growth and development of bone".
Because we did not consider that the ad's claim "for strong bones" had the same meaning as the approved claim "for normal growth and development of bone", we concluded that the ad altered the meaning of the authorised claim and was therefore in breach of the Code.
On that point, the ad breached BCAP Code rules
13.4
13.4
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) are permitted in advertisements.
Only health claims listed as authorised in the EU Register or claims that would have the same meaning for the audience may be used in advertisements:
www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
13.4.2
13.4.2
Advertisements 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. Advertisements must not give a misleading impression of the nutrition or health benefits of the product as a whole and factual nutrition statements should not imply a nutrition or health claim that cannot be supported. Claims must be presented clearly and without exaggeration
and
13.6.1
13.6.1
Claims that state or imply health could be affected by not consuming a food
(Food, food supplements and associated health and nutrition claims).
2. Upheld
Taking account of the relevant background regarding the Register set out under point 1, we acknowledged that the claim "Iron contributes to normal cognitive development of children" appeared on the list of authorised health claims. We accepted that the product met the conditions of use associated with that claim.
We considered whether the health claim "provides iron for brain development" had retained the meaning of the authorised claim that the advertisers had submitted in support of the ad: "Iron contributes to normal cognitive development of children".
Because we noted that the ad was clearly promoting follow-on milk, a product for babies aged 6 to 12 months, we considered that, in that context, the removal of the reference to children from the claim was unlikely to breach the Code.
We noted that the advertisers had replaced "Iron contributes to ..." with "provides iron for ...". We considered that stating that a substance, such as iron, "contributes to ..." implied that it was one of a number of elements which created a health benefit, whereas stating "provides [substance] for ..." could be understood to mean that that nutrient alone created the health benefit. We also considered that stating "Iron contributes to ..." implied that iron helped achieve that health benefit, whereas "provides iron for ..." exaggerated the importance of iron in achieving that health benefit.
On that basis, we did not consider that stating "Iron contributes to" equated to a reference to "provides iron for", as it exaggerated the authorised claim. We further considered that consumers would not understand the adapted wording used in the ad to have the same meaning as the authorised wording.
We noted that the advertisers had replaced "normal cognitive development" with "brain development".
We noted that the DH’s guidance advised that the term “normal” should be retained in adapted wording and noted that "normal" was part of the approved claim. We considered that it was important to retain the term “normal”, in the context of the approved claim "Iron contributes to normal cognitive development of children", in order to retain the same meaning for consumers. We considered that retaining the term made clear that the claim related to the normal functioning of the body and did not exaggerate the effects of the product or imply, for example, that iron contributed to an improved cognitive development.
We acknowledged that, based on their own research, the advertisers believed that 'cognitive' was poorly understood by consumers. However, and particularly in the context of an ad for a children's food, we considered that "brain development" suggested a wider range of physical and functional development than "cognitive development", because "brain development" related to the physical development of an organ, whereas "cognitive development" related to the development of normal cognitive function, such as normal mental acuity and processing. On that basis, we did not consider that a reference to "brain development" equated to a reference to "cognitive development" or to "normal cognitive development" and further considered that consumers would not understand that adapted wording to have the same meaning as the authorised wording.
Because we did not consider that the ad's claim "provides iron for brain development" had the same meaning as the approved claim "Iron contributes to normal cognitive development", we concluded that the ad had altered the meaning of the authorised claim and was therefore in breach of the Code.
On that point, the ad breached BCAP Code rules
13.4
13.4
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) are permitted in advertisements.
Only health claims listed as authorised in the EU Register or claims that would have the same meaning for the audience may be used in advertisements:
www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
13.4.2
13.4.2
Advertisements 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. Advertisements must not give a misleading impression of the nutrition or health benefits of the product as a whole and factual nutrition statements should not imply a nutrition or health claim that cannot be supported. Claims must be presented clearly and without exaggeration
and
13.6.1
13.6.1
Claims that state or imply health could be affected by not consuming a food
(Food, food supplements and associated health and nutrition claims).
Action
The ad must not be broadcast again in its current form.
