Background
Summary of Council decision:
Four issues were investigated, two were Upheld and two were Not upheld.
Ad description
Three national press ads and three posters for SMA Follow-on Milk. Each ad featured a mother and child and a headline that incorporated the name of the mother in that ad, for example, "What's the best milk after Emma's?". Each ad also featured the SMA logo and a pack shot of SMA Follow-on Milk. A bubble with the text "6+ months" was next to each pack shot. A footnote on each ad stated, "IMPORTANT NOTICE: SMA Follow-on Milk is for babies over 6 months and is not intended to replace breastfeeding. It should only be used as part of a varied weaning diet".
Press ad (a) also stated, "Emma breastfed her daughter because she knew it would give her the best start in life. When she finished, she was determined to find the best option for her baby. She chose SMA Follow-on Milk because it contains Omega 3 & 6 for growth and development. For Emma, the best milk after hers is SMA Follow-on Milk. To find out if SMA is the best milk after yours, visit smanutrition.co.uk".
Press ad (b) also stated, "Kate breastfed her son because she knew it would give him the best start in life. When she finished, she was determined to find the best option for her baby. She chose SMA Follow-on Milk because it contains vitamin D to help bone and teeth development. For Kate, the best milk after hers is SMA Follow-on Milk. To find out if SMA is the best milk after yours, visit smanutrition.co.uk".
Press ad (c) stated, "Lisa breastfed her daughter because she knew it would give her the best start in life. When she finished, she was determined to find the best option for her baby. She chose SMA Follow-on Milk because it benefits from over 90 years of research into breast milk. For Lisa, the best milk after hers is SMA Follow-on Milk. To find out if SMA is the best milk after yours, visit smanutrition.co.uk".
Poster ad (d) stated, "Emma breastfed her daughter because she knew it would give her the best start in life. When she finished, she was determined to find the best option for her baby. For Emma, the best milk after hers is SMA Follow-on Milk. To find out if SMA is the best milk after yours, visit smanutrition.co.uk".
Poster ad (e) stated, "Kate breastfed her son because she knew it would give him the best start in life. When she finished, she was determined to find the best option for her baby. For Kate, the best milk after hers is SMA Follow-on Milk. To find out if SMA is the best milk after yours, visit smanutrition.co.uk".
Poster ad (f) stated, "Lisa breastfed her daughter because she knew it would give her the best start in life. When she finished, she was determined to find the best option for her baby. For Lisa, the best milk after hers is SMA Follow-on Milk. To find out if SMA is the best milk after yours, visit smanutrition.co.uk".
Issue
Sixty-four complainants, including UNICEF UK, the Royal College of Paediatrics and Child Health, Baby Milk Action and the Lactation Consultants of Great Britain, objected to the ads. They challenged whether the ads:
1. misleadingly implied that follow-on milk was the best alternative to breast milk;
2. misleadingly implied that SMA Follow-on Milk was superior to other follow-on milk;
3. were misleading because they implied that breastfeeding should stop at six months; and
4. did not differentiate sufficiently between infant formula and follow-on formula and could undermine breastfeeding.
Response
1. Pfizer Ltd did not believe the ads implied that SMA Follow-on Milk was an alternative to breast milk. They said all the ads stated that SMA Follow-on Milk was not intended to replace breastfeeding. They also believed that it was clear from the ad that the follow-on milk was chosen after breastfeeding had already "finished". Pfizer did not believe that it could be inferred from the ads that follow-on milk was being promoted as an alternative or substitute for breast milk. They also pointed out that all the ads stated that SMA Follow-on Milk was for babies over six months and should only be used as part of a varied weaning diet.
Furthermore, Pfizer said the text on the pack shots in the ads was repositioned and enlarged to clearly indicate that the product was for babies aged "6 months +" and that the product was "Follow-on Milk" and should only be used "To complement the weaning diet". They also said all the babies in the ads were over seven months old, which was clearly demonstrated as they were sitting unsupported or standing. Pfizer said that they had taken all reasonable steps to ensure that the ads neither promoted follow-on milk as an alternative to breast milk or undermined breastfeeding.
2. Pfizer said the ads did not claim SMA Follow-on Milk was the best follow-on milk or that it was superior to other follow-on milks. They said that the ads asked an open question about which follow-on milk the mums featured in the ads thought was best for them as individuals. They said the mums that featured in the ads were real people who had chosen SMA Follow-on Milk, based on their individual circumstances.
3. Pfizer said that SMA Follow-on Milk was suitable from six months as part of a varied weaning diet. They said the Infant Formula and Follow-on Formula Regulations (the Regulations) specified that ads for follow-on milk must state that the product is suitable from six months of age, that it should form part of a mixed diet and that it is not a substitute for breast milk during the first six months of life. They believed that the ads had met those requirements.
Furthermore, Pfizer stated that the ads did not state or imply that breastfeeding should stop at six months but only stated from what age the product may be used. They said the ad did not specify when mothers should stop breastfeeding. They also said the children in the ads were all above seven months of age. As above, Pfizer, believed that the information in the body copy of the ads, the 'Important notice' and the pack shots clearly indicated that the product was follow-on milk, that it was not intended to replace breastfeeding and that it should be used as part of a mixed diet. For these reasons they did not believe that the ads implied that breastfeeding should stop at six months or that they discouraged breastfeeding.
4. Pfizer said that according to the Regulations marketers had to advertise follow-on formula in a way that enabled consumers to make a clear distinction between infant and follow-on formula, to avoid the risk of confusion. They said the ads were clearly for follow-on formula and had made no reference to infant formula. They also said that the appearance of the pack shot was sufficiently distinct from that of the SMA First infant Milk. They said the text on the pack shot was deliberately enlarged and repositioned in order to indicate more clearly that the product was follow-on milk. They again referred to the text "6 months +" that overlapped the pack shot and the fact that the babies were clearly over six months of age. Furthermore they pointed out the 'important notice', which stated that "SMA Follow-on Milk is for babies over 6 months and is not intended to replace breastfeeding. It should only be used as part of a varied weaning diet". For these reasons Pfizer believed they had made it clear to consumers that the product promoted was follow-on formula and not infant formula.
Assessment
1. & 2. Upheld
The ASA noted some complainants objected that the ads implied SMA Follow-on Milk was the best alternative to breast milk and also that it was superior to other follow-on milk. We noted that all the ads contained the text "IMPORTANT NOTICE: SMA Follow-on Milk is for babies over 6 months and is not intended to replace breastfeeding. It should only be used as part of a varied weaning diet". We also noted Pfizer stated that the mothers in the ads chose the SMA Follow-on Milk after breast feeding had already stopped. Pfizer said the mothers featured in the ad were real mothers who had chosen SMA Follow-on Milk based on their individual circumstances. Pfizer believed the ads had not claimed that their product was the best or was superior to other follow-on milks, but merely posed an open question about which product the mothers in the ad thought was the best for them, individually.
We considered that it was sufficiently clear that the ads were not suggesting breastfeeding should be stopped and replaced with follow-on milk. However, we did not consider that the claims in the ads were portrayed as real testimonials or the individual preferences of real mothers. We did not therefore consider that the average consumer would infer that the ads were merely posing an open question, which was subsequently and subjectively answered by the 'real' mothers featured in the ads. We considered claims such as "What's the best milk after Kate's?" and "When she finished, she was determined to find the best option for her baby ... For Kate the best milk after hers is SMA Follow-on Milk" were presented as objective statements of facts that SMA Follow-on Milk was the best option once breastfeeding had stopped. We therefore considered that these comparative claims should be supported with suitable evidence demonstrating that SMA Follow-on Milk was the best option once breastfeeding had stopped. We understood that there were other options available to mothers, once they had stopped breastfeeding, including infant formula and other follow-on milks. Because we did not see evidence that SMA Follow-on Milk was the best alternative to breast milk once breastfeeding had stopped, or that it was superior to other follow-on milk, we concluded that the ads were misleading on these grounds.
On these points the ads breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation), 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) and 3.38 3.38 Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage. (Other comparisons).
3. Not upheld
We noted the ads all contained a bubble partially overlapping the pack shots that stated, "6+ months" and that Pfizer stated that this referred to the time from when it was suitable to consider using follow-on milk. We also noted the ads contained the text "IMPORTANT NOTICE: SMA Follow-on Milk is for babies over 6 months and is not intended to replace breastfeeding. It should only be used as part of a varied weaning diet" and referred to SMA Follow-on Milk being chosen once breastfeeding had finished. We considered that the claims about the benefits of SMA Follow-on Milk were made in the context that breastfeeding had already been stopped and that the ads had not implied that breastfeeding should stop at any particular time. We considered it was clear that the product was not promoted as an alternative to breast milk. For these reasons we concluded that the ads were not misleading on this point.
On this point we investigated the ads under CAP Code (Edition 12) rules 1.3 (Social responsibility), 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) but did not find them in breach.
4. Not upheld
We noted some complainants believed the ads did not make clear that they were promoting follow-on milk and could be understood as promotions for infant formula. However, we considered that the ads included a clear and prominent pack shot showing the product that was being promoted. We also noted that the claims "Follow-on Milk", "6+ months" and "To complement the weaning diet" were visible on the product images. We also noted that the babies featured in the ad looked older than six months. Furthermore, all the ads advised that the product was not intended to replace breastfeeding, was only suitable for babies over six months old and referred explicitly to SMA Follow-on Milk. The ads contained a link to the SMA website, which did include information about infant formula. However, we considered that the overall impression of the ads was that they were promoting follow-on milk only.
We took advice from the Department of Health on the Infant Formula and Follow-on Formula Regulations 2007 (the Regulations). They agreed with our assessment and considered that the ads complied with the requirements of the Regulations on this point. This opinion was based on the following factors: the ads only made reference to "SMA Follow-on Milk"; the ads included the text "6+ months"; the information contained in the "Important Notice" statement; the babies in the ads all had hair and were featured sitting up or standing unaided, therefore indicating that they were over six months old.
For the reasons listed above and in light of the Department of Health's advice on the Regulations, we concluded that the ads had not breached the Code on this point.
On this point we investigated the ads under CAP Code (Edition 12) rules 1.3 (Social responsibility), 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 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) but did not find them in breach.
Action
The ads must not appear again in their current form.
CAP Code (Edition 12)
15.10 15.10.1 3.1 3.11 3.38 3.7
