Background
Summary of ASA Council decision:
Three issues were investigated, all of which were Not upheld.
Ad description
A TV ad, a regional press ad and a national press ad for Tesco milk:
a. Voice-over in the TV ad stated, "At Tesco, caring about our milk goes all the way back to the cows. We promise a fair price for our farmers and a low price for you. It's fresh British milk at a price that's down and staying down." Various clips were played in reverse. They included a farmer walking backwards with a wheelbarrow, a milk van reversing out of an old farmyard, a line of cows in a pen feeding on hay, a farmer milking cows and five cows in an open field. On-screen text stated "Selected milk 4 pints £1".
b. The regional press ad showed three cows in an open field. Text stated "Only £1 4 pint milk - 4 pint milk down and staying down". Footnote text stated "Tesco British Skimmed/Semi-Skimmed/Whole Milk 4 pints only £1, 25p/pint".
c. The national press ad showed four cows in an open field. Text stated "Our promise to British dairy farmers - At Tesco we care about our milk and where it comes from, which is why we set up the Tesco Sustainable Dairy Group. We promise that our farmers will always be paid a fair and independently agreed price for their milk. Which means they can protect the livelihood of their farms and provide higher welfare standards for their cows. When you buy your milk at Tesco you can be confident that it's responsibly sourced and at a fair price for all. Find out more at [website address]". The logos for Tesco Sustainable Dairy Group and Tesco appeared underneath.
Issue
1. A viewer challenged whether ad (a) was misleading because they believed the image of cows in an open field did not accurately represent how the milk was produced or the conditions in which the cows lived.
2. A reader challenged whether ad (b) was misleading for the same reason.
3. A second reader, a farmer, challenged whether the suggestion in ad (c) that Tesco sourced all their milk through the Tesco Sustainable Dairy Group was misleading and could be substantiated, because they believed only a small proportion was.
Response
1. & 2. Tesco said all their milk supplying farmers were required to meet industry Red Tractor standards, along with a number of milk quality requirements and were also prohibited from exporting calves. In addition, all their Core farmers were required to adhere to a Tesco-developed Livestock Code of Practice for dairy cows, which focused on key welfare outcome measures such as lameness, mastitis, fertility and animal health, and also environmental indicators and food safety. Tesco supplied copies of the Red Tractor standards and Tesco's Livestock Code of Practice for dairy cows. Tesco monitored performance levels and the standards were independently audited for compliance. Tesco believed it was possible to have high welfare standards within a diverse range of production systems and believed that certain measures on their own (for example, grazing) did not necessarily lead to higher welfare. They said that, nonetheless, most of their farmers operated a system that involved grazing outside in summer and housing during the winter. Depending on season and soil type, the amount of time cows were housed in winter would vary, and a small minority housed their cows throughout the year. They said it was standard farming industry practice for cows not to be grazed outside for the whole of the year, and that that was partly the case for welfare reasons, as it would be harmful for dairy cows to be grazed outside in weather conditions such as snow and cold temperatures, but that 80% of the dairy cows that were part of the Tesco Sustainable Dairy Group (TSDG) were grazed outside full time during periods in which it was appropriate and beneficial for them to do so. They believed most consumers would be aware of that and would not expect dairy cows supplying milk to Tesco to be grazed outdoors perpetually. Because of that, they did not believe the images used were misleading.
Clearcast said they had sought assurances from Tesco that the depiction of the cows in the ad was typical of those that supplied their milk and received the welfare information described above. Clearcast said the TV ad showed how the cows would spend the majority of their time; that it was a recognised picture of rural life and was not misleading.
3. Tesco said the Core farmers of the TSDG supplied approximately 80% of Tesco's total milk requirements over the course of a year. The Core farmers were supplemented during periods of low production by Seasonal farmers. Tesco supplied data for the period April 2013 to May 2014 obtained from the two dairy companies who contracted directly with Tesco's farmers which showed the total volume of milk required by Tesco and how that was split between Core and Seasonal farmers. Both Core and Seasonal farmers were part of TSDG and received the full TSDG price for the milk they supplied. The TSDG price was calculated independently and recognised the costs associated with milk production and included provision for capital investment. The TSDG price was protected from the retail price charged for milk, which meant that the price paid to farmers was not influenced by the price at which milk was sold to customers.
Assessment
1. & 2. Not upheld
The ASA considered the ads suggested that the cows supplying milk to Tesco were generally not farmed intensively; that they had reasonable access to outside grazing; and had procedures in place to ensure their welfare. We appreciated that the exact conditions in which cows would be kept were likely to vary from one location to another and according to weather conditions and the time of year. The Red Tractor documentation stated requirements for cows to be milked and to be allowed untethered exercise every day and set out the records that needed to be kept (and when assistance needed to be sought) for lameness, mastitis and other diseases and conditions. Farms were inspected on initially registering with the scheme and dairy farms were then reinspected at intervals of no more than 18 months. Tesco's Livestock Code of Practice for dairy cows stated that inspections would be undertaken quarterly on a number of points which included lameness, cleanliness and body condition, and stated that farmers needed to check their cows at least monthly for mobility and foot health. Part of the reason why the complainants had challenged the ads was because they believed the visual impression given was at odds with the health and welfare conditions that the cows would experience. We considered however that the information Tesco had supplied demonstrated that procedures were in place to look after the animals' health and welfare to safeguard against the concerns raised by the complainants and that, when conditions were appropriate, the animals were likely to graze outside. Because of that, we concluded that the ads were not misleading.
On point 1 we investigated ad (a) under BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(Misleading advertising) and
3.9
3.9
Broadcasters must hold documentary evidence to prove claims that the audience is 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 it in breach.
On point 2 we investigated ad (b) under CAP Code (Edition 12) rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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 it in breach.
3. Not upheld
The ad did not contain a direct claim that all the milk supplied by Tesco came through TSDG. We considered that the line "When you buy your milk at Tesco you can be confident that it's responsibly sourced and at a fair price for all" in conjunction with the explanation of TSDG and the use of their logo, suggested that milk bought at Tesco would typically have come from that source. Although we considered Core TSDG farmers were likely to have a more stable income than Seasonal TSDG farmers, both sources were part of TSDG and the figures supplied by Tesco showed that all their own brand fresh and filtered milk (excluding organic, goat and flavoured) came through TSDG. We noted Tesco's explanation that both were paid at the same TSDG rate for the quantity they supplied, and that the rate had been calculated to recognise the cost of producing milk and to include provision for capital investment, which we considered would be significant considerations for consumers deciding whether or not they would buy milk at Tesco in response to the ad. Because all Tesco's own brand fresh and filtered milk (other than the exclusions stated above) came through TSDG, we concluded that the ad was not misleading.
On this point we investigated ad (c) under CAP Code (Edition 12) rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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
No further action necessary.
