Background
Summary of Council decision:
Two issues were investigated, of which one was Not upheld and one was Upheld.
Ad description
Three ads for the food retailer Pret A Manger, seen in December 2016:
a. A post on Pret A Manger's Flickr page. Text stated "BAKING AT PRET. You may have noticed we have a big, fancy baker's oven in every Pret shop (indeed some have two). We bake our baguettes, pastries, croissants and savouries in-house throughout the day ... ".
b. Pret A Manger's Facebook page stated "Pret opened in London in 1986. College friends, Sinclair and Julian, made proper sandwiches avoiding the obscure chemicals, additives and preservatives common to so much of the 'prepared' and 'fast' food on the market ...".
c. Pret A Manger's website www.pret.co.uk, stated "All Pret shops have a wonderful baker's oven (indeed, some have two). We bake our baguettes throughout the day, the fresher the better ... Just like our sandwiches, baguettes and salads, our wraps and flat breads are handmade throughout the day in each shop kitchen using good, natural ingredients ... GOOD NATURAL FOOD Our sandwiches, salads and baguettes etc are made using fresh, natural ingredients which get dropped off to each shop before dawn. We don't have a huge factory. Our food is freshly made throughout the day in each and every Pret kitchen. PRET CREATES HANDMADE NATURAL FOOD ... DOING THE RIGHT THING ... NATURALLY In 1986, Pret opened the doors of its very first shop. A shop with a mission. A mission to create handmade, natural food, avoiding the obscure chemicals, additives and preservatives common to so much of the 'prepared' and 'fast' food on the market today ... GOOD NATURAL FOOD Avoiding obscure chemicals and additives common to so much 'prepared' and 'fast' food ...".
Issue
Sustain challenged whether the following claims were misleading and could be substantiated:
1. claims that Pret baked products in its ovens in-store, because Sustain understood that the products were baked off-site and toasted in-store; and
2. claims, both expressed and implied, that Pret's products were natural and claims in ads (b) and (c) "avoiding the obscure chemicals, additives and preservatives common to so much 'prepared' and 'fast food'" implied that Pret's foods were free from artificial additives.
Response
1. Pret A Manger (Europe) Ltd did not believe the claims were misleading. They confirmed that all of their outlets had at least one oven. Some outlets had two ovens. The ovens were used to bake products which were clearly described by them as having been baked. They believed that was a statement of fact rather than a claim. They stated that "baking" and "toasting" were different processes. They explained that whilst their toasties were toasted, the products that they described as being baked underwent a baking process in their ovens, in particular: baguettes; pastries; croissants and savoury pastries. All of those products were subjected to a process which, they believed, fell within the definition of "bake" as they were cooked in an oven at temperatures ranging between 160 and 200 degrees Celsius.
They provided a copy of their 'Bakery Guide', an internal policy document that was distributed to all Pret A Manger outlets and that set out the baking methods, timings and temperatures applied to each of their baked products. All of their outlets were required to comply with those rules. They explained that, where applicable, the Bakery Guide indicated that a product was delivered to Pret A Manger frozen. When products were delivered frozen, they were delivered either part-baked (such as their baguettes) and the baking was finished in-store or as raw dough (such as their croissants and cookies). In addition, other products were cooked in their ovens, for example, biscuits, cookies, sausages and macaroni cheese.
They pointed out that they did not claim that their sandwich loaves were baked in-store.
2. Pret A Manger asserted that their ads did not claim, either expressly or impliedly insinuatingly, that they used only natural ingredients or that their food was additive and preservative free.
They said their use of terminology such as "natural" and their references to the avoidance of obscure additives and preservatives should be viewed in the context of their mission statement and the context in which consumers saw such ads. Their mission statement was "to create handmade, natural food, avoiding the obscure chemicals, additives and preservatives common to so much of the 'prepared' and 'fast' food on the market today" (the Mission Statement). They said that message was carried through much of their advertising and the message in its entirety, or part of it, appeared in various ads which were the subject of Sustain's complaint. They believed Sustain had mischaracterised their Mission Statement as an absolute, objective claim that Pret A Manger's products contained only natural ingredients and were additive free. That was not the purpose of the Mission Statement or the impression created by it. They said the Mission Statement was exactly as described – it was expressed as a "mission" and was therefore an ideal state or their ultimate goal. They believed that was very different from a claim that Pret A Manger had arrived at that ideal state. They also pointed out that they only claimed to "avoid" (as opposed to entirely eliminate) "obscure" (as opposed to all) chemicals, additives and preservatives.
In relation to ad (c) and the claim “doing the right thing … naturally”, they said the word “naturally” in that context did not refer to food but instead meant “of course” or “obviously”. They believed that was particularly so given the wider context of the ad which related to broader aspects of social responsibility and they pointed out that the phrase appeared immediately following a paragraph describing how they offered their unsold food to charity at the end of each day rather than keeping it to sell the next day.
They said that the claims were subject to extensive legal regulation and that much of the legislation and legal regulations that governed the food industry took into account practicalities such as food safety which allowed some flexibility for food producers when using certain terminology. For example, they said that even in relation to the most heavily-regulated terms such as "organic", the presence of up to 5% of EU-approved non-organic ingredients in an organic food product would not prohibit the use of the term.
In response to specific comments made by Sustain, Pret A Manger confirmed that their sandwich bread contained three E-numbers: E472e (diacetyl tartaric acid esters of mono and diglycerides), E471 (mono and diglycerides of fatty acids) and E300 (ascorbic acid). They explained that E472e was used to strengthen the dough and to reduce the number of large holes in the bread, E471 was used to soften the crumb and E300 was Vitamin C. They believed those E-numbers were commonly found in many household brands of bread and were widely used in the industry to make sandwich bread. They understood that other breads, but not theirs, contained additives which were obscure or less commonly used; they provided some examples.
They provided a copy of advice they had received from their Primary Authority in 2011 following a review of their Mission Statement. They said that Westminster Trading Standards had cleared the Mission Statement for use.
They understood that the term "natural" was the subject of an ongoing regulatory review. However, they believed their current position was legally compliant and they provided a letter from a law firm which stated that the relevant legislation referred to in the advice from Westminster Trading Standards had not changed. They also pointed out that the Food Standards Agency’s (FSA) “Criteria for the use of the terms fresh, pure, natural etc. in food labelling” guidance, revised July 2008 (the Guidance), was expressly stated to have the purpose of “help[ing] enforcement authorities to provide consistent advice about food labelling” and was, by its own description, “informal, non-binding advice”.
Pret A Manger said they were committed to continuing to review and audit their marketing materials to ensure that their advertising would at all times comply with the current legal requirements.
Assessment
1. Not upheld
The ASA considered that consumers were likely to interpret the claims "You may have noticed we have a big, fancy baker's oven in every Pret shop (indeed some have two). We bake our baguettes, pastries, croissants and savouries in-house throughout the day" in ad (a) and "All Pret shops have a wonderful baker's oven (indeed, some have two). We bake our baguettes throughout the day" in ad (c) to mean that the products listed were cooked rather than heated up in-store and that without the additional time in the oven, the products would have been inedible.
We understood that the baguettes were delivered frozen but had been part-baked and that other products were delivered as frozen raw dough. We considered that the Bakery Guide indicated that all of the products, even the part-baked baguettes, required time in the oven at temperatures and time periods which indicated that those products were being cooked rather than heated up or toasted. It was clear from the Bakery Guide that without that time in the oven, the products would not have been edible.
We noted that the Guidance stated “Terms such as ‘freshly baked’, ‘baked in store’ and ‘oven fresh’ may mislead consumers into believing that they are being offered products that have been freshly produced on site from basic raw materials. Some stores sell bread made from part-baked products that have been packed in an inert atmosphere or frozen off-site then ‘baked off’ at in-store ovens. Use of terms like ‘freshly baked’, ‘baked in store’ and ‘oven fresh’ on those products could potentially infringe the [relevant legislation]”. We noted that the Guidance was based on consumer research carried out prior to July 2008. At the time the ad was seen we considered that consumers would be very familiar with the high street sandwich shop industry, with several national chain outlets now selling standardised ranges of products which were assembled in store but had ingredients which had been delivered from elsewhere, including products which had been part-baked off-site or delivered as raw dough and baked in-store.
Given that context, we considered that consumers were unlikely to interpret “baked in store” to mean only products that were made from scratch using basic raw materials such as flour and butter. We considered that consumers were likely to interpret it to include products which were cooked from frozen raw dough or from part-baked dough.
For those reasons, we concluded that the claims were not misleading.
On that point, we investigated ads (a) and (c) under CAP Code (Edition 12) rules 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.
2. Upheld
The ASA acknowledged that some of the claims were expressed in the context of a mission statement in particular, ad (c), where it stated “In 1986, Pret opened the doors of its very first shop. A shop with a mission. A mission to create handmade, natural food, avoiding the obscure chemicals, additives and preservatives common to so much of the 'prepared' and 'fast' food on the market today ...”. We considered that in that context, some consumers might interpret the claims to mean that Pret A Manger’s aim or goal was to produce food that was natural and avoided obscure chemicals, additives and preservatives. However, we noted that the other claims were not expressed in those terms and did not therefore amount to a mission statement. In particular, ad (b) where it stated “[the founders of Pret A Manger] made proper sandwiches avoiding the obscure chemicals, additives and preservatives common to so much of the ‘prepared’ and ‘fast food’ on the market”, and ad (c) where it stated “Good, natural food ... Doing the right thing ... naturally … Avoiding obscure chemicals and additives common to so much 'prepared' and 'fast' food ...". We considered consumers were likely to interpret those claims to mean Pret A Manger’s foods were “natural”, as they did not contain obscure chemicals, additives and preservatives.
While we noted Pret A Manger’s comments regarding the context in which the claim “Doing the right thing … naturally” appeared in ad (c), the claim appeared as a heading to text regarding their Mission Statement and, as such, was linked to their food. We therefore considered the claim was likely to have a double meaning for consumers and they were likely to interpret it to mean both “doing the right thing, of course” as well as a statement about Pret A Manger’s foods being natural.
We noted that the advice given by Westminster Trading Standards was six years old and we were told by them that it was no longer valid.
We noted the inclusion of the term “obscure” in the claims in relation to chemicals, additives and preservatives. However, we referred to the Guidance, which was based on research into consumer understanding of the term “natural”. The Guidance stated “‘Natural’ means essentially that the product is comprised of natural ingredients, e.g. ingredients produced by nature, not the work of man or interfered with by man. It is misleading to use the term to describe foods or ingredients that employ chemicals to change their composition or comprise the products of new technologies, including additives and flavourings that are the product of the chemical industry or extracted by chemical processes”.
We considered that because some of Pret A Manger’s foods contained E-numbers, which were artificial additives that had been produced by chemical processes, notwithstanding whether the additives were obscure, those foods did not constitute “natural” foods for the purposes of the Guidance. We concluded that because ads (b) and (c) contained some claims that Pret A Manger’s food was “natural” when some products contained artificial additives, those claims were misleading and breached the Code.
On that point, ads (b) and (c) breached CAP Code (Edition 12) rules 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).
Action
Ads (b) and (c) must not appear again in their current form. We told Pret A Manger (Europe) Ltd to ensure their ads did not claim or imply that their food was “natural”, unless their products and ingredients were in line with consumer expectations of the term “natural”.
