Background
Summary of Council decision:
Three issues were investigated, of which all were Upheld.
Ad description
A direct mailing for Tesco's "royal babyevent", featured information about various products, including a section headed "Aptamil with Pronutra+ our most advanced formula yet". Text under the heading stated "With our continuous research in infant and toddler nutrition, our passionate team of over 250 paediatricians, nutritionists and scientists, continue to take inspiration from the benefits of nature, to develop our unique formulas, tailored to support your baby's nutritional needs at every stage of development". A graphic, which gave information about ingredients, stated "GOS/FOS (9:1) Patented blend of GOS/FOS (9:1), special carbohydrates encouraging your toddler's friendly bacteria to thrive", "LCPS [sic] (AA/DHA) Now with LCPs (Omega 3 and 6) to support visual development", and "... Iron Enriched with Iron to support brain development".
Issue
The complainant challenged the following claims, which were health claims that must be authorised on the EU Register of Nutrition and Health Claims Made on Foods (the "EU Register"):
1. "Patented blend of GOS/FOS (9:1), special carbohydrates encouraging your toddler's friendly bacteria to thrive"; and
2. "Now with LCPs (Omega 3 and 6) to support visual development".
3. The complainant also challenged the claim "tailored to support your baby's nutritional needs", which was a general health claim which must be accompanied by a specific authorised health claim.
Response
Tesco Stores Ltd said the ad was created by Nutricia and had been used not just by Tesco but in various forms across several different media and retailers. They considered that, as a specialist in the product type, Nutricia were best placed to ensure the ad was technically correct and met all relevant regulations.
1. Tesco said the claim referred to galacto-oligosaccharides (GOS) and fructo-oligosaccharides (FOS), which did not appear to have associated authorised health claims on the EU Register. Tesco said GOS/FOS were non-digestible carbohydrates that occurred naturally in breast milk, and which fed the beneficial bifidobacteria in the gut, encouraging their growth at the expense of potentially harmful bacteria. They believed the claim was a factual statement and did not imply any particular health benefits; rather, it explained the function of the ingredients. They therefore believed the claim might not be a health claim within the meaning of the Code.
Nutricia Ltd said the claim was a statement of fact about the composition of the product and the bifidogenic properties of GOS/FOS (9:1); in other words, that the ingredient promoted the growth of so-called "friendly bacteria" (bifidobacteria). They considered it was not a health claim for the purposes of EC Regulation 1924/2006 on Nutrition and Health Claims Made on Foods (the "Regulation") and the CAP Code, because they had been very careful not to imply any health benefit in the function of those special carbohydrates. They said it was important to consumers to know the purpose of the ingredients in their baby's formula, hence the explanation that they had given. They said that in 2010, equivalent claims had been considered by the European Food Safety Authority (EFSA) which assesses and recommends health claims for authorisation on the EU Register. They had found the claims not to be health claims on the basis that a beneficial effect on intestinal bifidobacteria was "not a beneficial physiological effect" as required by the Regulation.
2. Tesco said the claim referred to the substance docosahexaenoic acid (DHA), for which there were associated authorised health claims on the EU Register.
Nutricia said the claim "DHA contributes to the visual development of infants", or wording with equivalent meaning, was an authorised health claim on the EU Register, and the product met the conditions of use for the health claim, which was that at least 0.3% of the total fatty acids in formula milk must be DHA. Nutricia said that "Omega 3" was the term which was widely understood by consumers for the carbon structure of the long chain polyunsaturated (LCP) fatty acid DHA molecule, and therefore the claim as worded in the ad had the same meaning for consumers as the wording of the authorised health claim. They said they were in the process of amending the claim so that it stated "Now with LCPs; Omega 3 to support visual development, and Omega 6".
3. Tesco said they were unsure if the claim would be a health claim within the meaning of the Code. They considered it was more a statement of fact which must be true in order for the product to qualify as a follow-on formula. They understood that, in accordance with EC legislation on infant formulae and follow-on formulae ("EC formula legislation"), it was mandatory for the product's labelling to include a statement of its suitability for particular nutritional use for babies over the age of six months. They further understood that the Regulation's definition of a "claim" excluded messages or representations which were mandatory under EC formula legislation, and they therefore believed the claim was not subject to the Regulation or CAP Code rules based on the Regulation. They said that, if the ASA concluded the claim was a general health claim it was in any case compliant with the requirements of the CAP Code because the ad included specific authorised health claims.
Nutricia said that a statement of a product's suitability for particular nutritional use by infants over six months was a mandatory disclosure on the product's labelling under EC formula legislation. They said the definition of a "claim" under the Regulation expressly excluded any message or representation which was mandatory under EC or national legislation. They considered the claim was not, therefore, subject to the Regulation or the CAP Code rules based on it.
They believed that, even if the claim was subject to the Regulation and the Code, it was not a general health claim. The claim was a statement of fact that had been used for many years, to reassure parents and carers that the product was designed to be nutritionally suitable for children of 6 to 12 months. It had never previously been suggested that the claim constituted a health claim to consumers. Nutricia said the Regulation defined general health claims as "general, non-specific benefits of the nutrient or food for overall good health or health-related well-being". They said there was nothing in the claim which indicated a benefit for overall good health or well-being; rather, it was a statement about the suitability of the product and the category of consumers for whom it was intended − much like "suitable for vegans" or "gluten-free" in other contexts.
They said that even if the statement could be considered a general health claim, it was accompanied by two specific authorised health claims for infants aged six to twelve months: "Enriched with iron to support brain development" and "Now with LCPs (Omega 3 and 6) to support visual development". They understood that CAP Code rule 15.2 required a general health claim to be accompanied by only one specific authorised health claim and therefore, even if the ASA concluded that one or the other of the accompanying health claims was not compliant with the Code, the ad would still meet the requirements of rule 15.2.
Assessment
The ASA understood that, since publication of the ad and during the course of our investigation into the challenged claims, Nutricia had made various amendments to the way in which it used specific health claims in its advertising, following ASA adjudications on similar advertising claims.
1. Upheld
The CAP Code defined a health claim as any claim that stated, suggested or implied that a relationship existed between a food category, a food or one of its constituents and health. According to the Regulation, which was reflected in the CAP Code, only health claims listed as authorised on the EU Register were permitted in marketing communications.
We considered the claim "Patented blend of GOS/FOS (9:1), special carbohydrates encouraging your toddler's friendly bacteria to thrive" implied that the intake of GOS and FOS in a 9:1 ratio would contribute to creating a 'healthy' balance of bacteria in the gut and so support normal digestion and/or improve digestive health in toddlers. We considered the claim therefore implied a relationship between those substances and health. The claim was, therefore, a health claim as defined by the Code and could not be used in marketing communications unless it was authorised on the EU Register.
As referenced by Nutricia, we noted the EFSA, which recommends to the EC whether or not health claims should be authorised, had considered a large number of claims which related to the health benefits of GOS and FOS, as well as claims relating to the health benefits of "friendly bacteria" in general. However, the EFSA had not concluded that the submitted claims were not health claims (i.e. that they did not state or imply a health benefit), but rather had concluded the evidence did not support the submitted health claims for those substances. Consequently, there were no authorised health claims on the EU Register for either GOS or FOS, or for the combination of the two substances in a 9:1 ratio. Because the health claim "Patented blend of GOS/FOS (9:1), special carbohydrates encouraging your toddler's friendly bacteria to thrive" was not authorised on the EU Register, we concluded the ad breached the Code.
On this point, 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.
and
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.
(Food, food supplements and associated health and nutrition claims) and
15.17
15.17
Claims referring to children's development and health are acceptable if authorised by the European Commission.
(Nutrition claims and health claims).
2. Upheld
The claim "Now with LCPs (Omega 3 and 6) to support visual development" did not appear on the EU Register of authorised health claims. Nutricia, however, had said that the claim "DHA contributes to the visual development of infants", or wording with an equivalent meaning, was authorised. We understood the authorised health claim to which Nutricia referred was "Docosahexaenoic acid (DHA) intake contributes to the normal visual development of infants up to 12 months of age" (the "authorised claim"). We accepted that the product met the conditions of use associated with the authorised claim.
We noted marketers could exercise some flexibility in rewording authorised claims, provided that the reworded claim was likely to have the same meaning for consumers as the authorised health claim and the aim of the rewording was to aid consumer understanding, and taking into account factors such as linguistic or cultural variations and the target population. The CAP Code, which reflected the requirements of the Regulation, stated that health claims must be presented clearly and without exaggeration. We therefore considered whether the health claim in the ad had retained the meaning of the authorised claim.
We understood that DHA was an omega-3 fatty acid, and we acknowledged that the term 'Omega 3' was more widely known by consumers for such substances. We considered it was therefore acceptable to amend the wording of the authorised claim to refer to omega 3 rather than DHA, because the amendment was likely to aid consumer understanding of the claim.
The claim in the ad replaced the wording "contributes to" in the authorised claim with "to support". We considered that the wording "to support" retained the meaning of the authorised claim and did not exaggerate it. We concluded it was acceptable to reword that aspect of the authorised claim in that way.
The claim in the ad also replaced the wording "the normal visual development of infants up to 12 months of age" in the authorised claim with the wording "visual development". The ad was for a product for babies aged 6 to 12 months, and, in that context, we considered the removal of the reference to children from the claim was unlikely to breach the Code.
However, we were concerned that the word "normal" had been removed from the claim. 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 considered that removing the word "normal" from the authorised claim meant that it was not clear to consumers that the health effect of DHA related to the normal visual development of babies. We therefore concluded that the omission of the word had changed the meaning of the authorised health claim, and the claim was therefore in breach of the Code.
Notwithstanding the above, we also considered the claim implied that omega 6 supported visual development. However, there were no authorised health claims on the EU Register to the effect that any omega-6 fatty acids supported visual development. We therefore concluded the claim also breached the Code in that regard. We welcomed Nutricia's willingness to amend the claim so that it no longer implied any specific health benefits for omega-6 fatty acids.
On this point, 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.
and
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.
(Food, food supplements and associated health and nutrition claims) and
15.17
15.17
Claims referring to children's development and health are acceptable if authorised by the European Commission.
(Nutrition claims and health claims).
3. Upheld
Tesco and Nutricia considered the claim was excluded from the provisions of the Regulation because they believed it was a mandatory statement required by EC formula legislation. However, that provision of the formula legislation related only to product labelling, rather than advertising. The advertising claim was, therefore, subject to the requirements of the Regulation and the relevant rules of the CAP Code. According to the Regulation, which was reflected in the CAP Code, references to general, non-specific health benefits could be made in relation to a food, but only if such claims were accompanied by a specific, authorised health claim.
We first considered whether the claim was a general health claim. Tesco and Nutricia believed the claim "tailored to support your baby's nutritional needs" to be simply a statement of fact. We considered, however, that consumers would understand the claim to be making a positive, albeit very general, claim that the formula would help babies to take in all of the nutrients they needed to develop properly. In the context of a food specifically for babies, we considered consumers would understand the reference to babies' "development" as synonymous with their overall health rather than, for example, a factual statement about the presence or absence of ingredients. We concluded the claim "tailored to support your baby's nutritional needs" referenced general, non-specific health benefits of the food and was therefore a general health claim for the purposes of the CAP Code.
We next considered whether the general health claim was accompanied by a specific authorised health claim as required by the Code. The ad included three specific health claims, relating to GOS/FOS 9:1, LCPs, and iron. As referenced at points 1 and 2, because the claims relating to GOS/FOS 9:1 and LCPs were not authorised health claims, we considered they did not meet the criteria to be considered to be specific authorised health claims accompanying the general health claim in the ad.
The remaining specific health claim in the ad was "Enriched with Iron to support brain development"; we understood that claim was a rewording of the authorised health claim "Iron contributes to normal cognitive development of children". We considered the wording "to support" would have the same meaning to consumers as "contributes to" and was therefore unlikely to breach the Code, and, because the product was specifically for babies aged 6 to 12 months, the removal of the reference to children was also unlikely to breach the Code. We considered, however, that the replacement of "normal cognitive development" with "brain development" changed the meaning of the authorised claim; removing the word "normal" meant it was not clear the claim related to the normal functioning of the body and therefore the effects of the product were exaggerated, and "brain development" suggested a wider range of physical and functional development than "cognitive development". We concluded that the claim "Enriched with Iron to support brain development" in the ad had altered the meaning of the authorised claim and therefore was in breach of the Code. Because the claim was not an authorised health claim, we considered it also did not meet the criteria to be considered to be a specific authorised health claim accompanying the general health claim in the ad.
We concluded that, because the general health claim "tailored to support your baby's nutritional needs" was not accompanied by a specific authorised health claim, the claim was in breach of the Code.
On this point, the ad breached CAP Code (Edition 12) rule 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 and nutrition claims).
Action
The ad must not appear again in its current form. We told Nutricia Ltd they should not use unauthorised health claims in their advertising and to ensure they retained the meaning of, and did not exaggerate, any authorised health claims if they reworded them to aid consumer understanding. We told them to ensure that general health claims were accompanied by a specific, authorised health claim.
