Round-up summary of ASA Rulings in Food & Drink Sector (May 2018)

May was an interesting month for Advertising Standards Authority (ASA) adjudications for the making of claims; with 'halal', 'detox' and the making of negative health claims about a food.  

The use of the term 'halal' can be contentious to some consumers due to welfare complaints, with a growing demand for halal foods and a lack of specific legal clarity, this was a very important adjudication by the ASA into how that claim should be interpreted. 

Interpretation of 'halal' examined (Winterton Brothers Ltd - 30 May)

Winterton Brothers, a halal chicken supplier, featured a logo on their website with the text “100% HALAL CHICKEN”.  A complaint was made against them to the ASA that this claim was misleading and could not be substantiated as the animals were stunned before being slaughtered.

Winterton Brothers Ltd said they purchased their chicken from halal certified suppliers. They supplied a certificate issued by Halal Consultations to Highbury Poultry Farm Product Ltd, which stated that they had been accredited by Halal Consultations to carry out halal slaughtering. They said the process for slaughtering used by their suppliers involved stunning in most cases and that this was true for most halal chicken on the market.

The ASA considered consumers were likely to interpret the claim “100% halal chicken” to mean that 100% of the chicken obtained from Winterton Brothers was produced in a way that was consistent with standards for halal slaughter.

It was noted that Guidance for halal and kosher slaughter published on www.gov.uk stated that all animals must be stunned before slaughter unless they were being religiously slaughtered for halal or kosher meat. However, it did not state that meat from animals that had been stunned could not be described as halal. The website of the Halal Food Authority stated that they did allow the stunning of birds and animals, provided that process did not kill the animals and that it was carried out by certain approved methods.

The ASA recognised that opinion could be divided, but it found that the requirements for halal slaughter did not prohibit stunning and the vast majority of halal meat sold in the UK was slaughtered using that method. They therefore concluded that the Winterton Brothers Ltd claim of “100% halal chicken” was not misleading.

The Anti-Health Message

Claims made against a food also need to be properly substantiated (VIVA! - 16 May)

Complaints against Viva!, a veganism advocacy charity, were upheld by the ASA this week. The complaints concerned posters that referenced a link between cow’s milk and cancer: The posters featured an image of a cow’s udder and included the claims “Some dairy industry facts we bet you don’t know … Most cows are pregnant when milking. That’s why milk contains 35 hormones, including oestrogen … some of these are linked to cancer. Milk is for babies, so let Viva! wean you off the teat!”.

Viva! Argued the adverts stated ‘linked to’ cancer rather than ‘caused’ cancer and therefore did not claim an absolute causative relationship. They referred to a range of scientific papers and in support of these papers as substantiation argued that all human studies that focused on diet were observational and so there would always be confounding factors. Viva! Maintained that in epidemiological studies the best that could be done was to control for as many confounding factors as possible and it was simply, good scientific practice that studies called for more research.

The ASA assessed the evidence provided and concluded they constituted adequate evidence that over 35 hormones were present in cow’s milk.

The ASA made the following critiques of the studies provided by Viva!:

  • They were unable to account for confounding factors;
  • Some studies were self-reported and not validated;
  • The papers referred to other conflicting evidence;
  • All noted the need for additional studies to confirm their findings;
  • Some studies related to dairy consumption as a whole; and it was also not clear which related specifically to cow’s milk rather than milk per se;
  • Some studies were not peer reviewed and not published in a  mainstream scientific journal.

Finally, the studies and meta-analysis did not support Viva’s assertion that the findings of increased risk of cancer were specifically a result of the hormones present in cow’s milk rather than to other factors.

The ASA therefore concluded the claim “milk contains 35 hormones, including oestrogen … some of these are linked to cancer”, as it would be understood by consumers to mean that due to the presence of hormones, drinking cow’s milk could increase a person’s risk of developing cancer, had not been substantiated and was therefore misleading.

Use of ‘Detox’ and the Trademark defence in making a health claim  (PUKA HERBS LTD – 16 May )

A website for Pukka Herbs, www.pukkaherbs.com, a tea and food supplement seller, was seen on 4 May 2017 and stated "Detox ... detox tea".  Two complainants challenged whether the claim "detox” breached Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods (the Regulation), and the CAP Code. The Regulation stated that only health claims listed as authorised on the EU Register of health claims made on foods were permitted in marketing communications. The Regulation and CAP Code defined health claims as those that stated, suggested or implied a relationship between a food and drink or ingredient and health. References to general benefits of a nutrient or food for overall good health or health-related well-being were acceptable only if accompanied by a specific authorised health claim.

Pukka Herbs Ltd argued they had been using Detox as part of their brand and product range since 2004. There is an transitional measure within the Regulation where “Products bearing trade marks or brand names existing before 1 January 2005 which do not comply with this Regulation may continue to be marketed until 19 January 2022 after which time the provisions of this Regulation shall apply”. They said their local Trading Standards had confirmed they could keep the name until the transitional period expired. A judgment of the European Court of Justice in 2013 (Green Swan Pharmaceuticals) confirmed that the transitional period applied to trade marks protected by national law even if they were not formally registered as trade marks. They believed the Detox tea name did not need to be accompanied by a relevant authorised health claim until 2022. In 2003/4, when the product was launched, it was not possible for them to register the name as a trade mark for several reasons: financial, because they were a small business at the time; trademark, because it was not possible to register it as such; and legislative, because it was not necessary to gather evidence and protect the name under transitional measures because the Regulation was not in force.

The ASA considered the reference to “detox” was likely to be understood as relating to the general benefits of the product or its ingredients for overall good health or health-related well-being. As such, we considered the claim “detox” was a general health claim.

Neither “Detox” nor “Pukka Detox” had been registered as a trade mark before 1 January 2005, and therefore were not covered by that exemption on that basis.

The ASA further held the trademark transition had not been established as insufficient goodwill in the descriptive term had been established.

The ASA summarised that in the absence of a pre-2005 registered trade mark, advertisers could nevertheless still fall within the transitional exemption if they established that the relevant trade mark or brand name, in this case “Detox”, would have been protected by the common law action of passing off in the UK prior to 1 January 2005. To justify such protection, they would need to provide evidence to show that the trade mark or brand name in question was used in the UK before 1 January 2005 on (or in relation to) the product in question such as to establish, on the balance of probabilities, that a goodwill existed at that date in the mind of the purchasing public by association with the trade mark or brand name in question.

Although evidence showed that Pukka had used the name 'Detox' in 2004, including: trading schedules and a trade catalogue; product specification forms and order forms; a stock valuation file; flyers; a poster; and an archived page of a website showing the product for sale. The ASA considered that the evidence we had seen was not sufficient to establish the requisite goodwill i.e.  level of trade experienced by Pukka, with particular reference to sales up to 31 December 2004. In any event, "detox" was a descriptive term rather than a distinctive word, that was how it appeared primarily to have been used by Pukka prior to 2005, and in the view of the ASA it was unlikely that the advertiser would have established sufficient goodwill and recognition in it to give rise to a meaningful passing-off right.

The ASA therefore found that Pukka Herbs Ltd were not to make references to general benefits of food for overall good health or health-related well-being in brand names unless those claims were accompanied by a permitted health or nutrition claim.

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