Round-Up of ASA Rulings in Food & Drink Sector (March 2018)

March has been an interesting month for the food sector with five ASA (Advertising Standards Authority) rulings

Key areas of developing interpretation were in relation to:

  • the provision and methodology for consumer surveys;
  • the interpretation of ‘processing’ and the use of the word ‘natural’;
  • the use and interpretation of ‘free trade’ and its’ logo;
  • Health claims and the interpretation of authorised claims;
  • Irresponsible alcohol advertising, how much is too much?
  1. Lies, damned lies & statistics - Heineken UK Ltd t/a Bulmers (28 March) 

A magazine ad for Bulmers Cider stated “2/3 of drinkers prefer the taste of Bulmers Original to Magners Original” with small text underneath which stated “SOURCE: Cardinal. 65.8% in a head to head blind taste test, surveyed in Nottingham and London June 2017. Excludes those who expressed no preference. Sample size: 146 regular apple cider drinkers”.

Two complaints were received, (including one from the Chair of the All Party Parliamentary Group on Statistics,) on whether the overall claim re “2/3 drinkers prefer…” was misleading and could be substantiated. However, the complaints were not upheld.

The ASA considered that the advert made clear the number of people surveyed and that readers were likely to realise that the claim “2/3 of drinkers prefer …” was based only on the 146 people surveyed and not all drinkers. No further reference other than the small print was provided for this consideration.  The ASA noted that the size and results of the taste preference test were fully stated in the small text at the bottom of the ad.

The report had been undertaken by a third-party researcher.

Participants: The report by Cardinal Research stated that the test was undertaken in two locations, with half of the participants in London and half in Nottingham. It further explained that the proportion of male and female participants and the number of participants in each of the two age categories (18–34 years old and 35+ years old), were weighted in accordance with Kantar Worldpanel Alcovision data to ensure that the sample was correctly weighted to ensure a representative sample of cider drinkers.

Methodology: The advertiser also set out the methodology used in the test and explained that each participant had a dry cracker and water before each drink and that they were blinded to which drink they were tasting. The drinks were presented, unmarked, side by side on a tray which indicated which drink should be tested first. Half of the participants tested the Magners first and half of the participants tested the Bulmers first, which we considered was an acceptable rotation of the drinks. The participants had three gulps of each drink and then were asked by an interviewer to make an overall taste preference. Both drinks were served over ice.

The ASA made some interesting conclusions, after taking expert advice:

  • for a market research survey, the sample used by Heineken was a reasonable match to the Kantar data and it was therefore sufficiently representative of the cider drinking population;
  • It was acceptable to exclude those 5 people who expressed no preference;
  • the sample population was large enough for sufficiently sensitive results which showed that around two-thirds of people preferred the taste of Bulmers Original to Magners Original.

The ASA therefore considered that the sample size and methodology were adequate to substantiate the claim and the ad was not misleading.

This is a great ruling to refer to for clarity in establishing third party agencies and accepted methodology for surveys and the standards for statistics.

  1. Use of the term ‘Natural Ingredients’ & the meaning of minimal processing - United Biscuits (UK) Ltd t/a Go Ahead (14 March) 

This concerned an important further ruling on how the term ‘natural’ might be interpreted vis a vis processed ingredients.

A poster ad for Go Ahead Goodness bars stated that the Go Ahead Goodness Bar was “CRAMMED WITH 100% NATURAL INGREDIENTS”. It was challenged on whether the ingredients of the product would be understood as ‘natural’ by consumers.

The Food Standards Agency (FSA) 2008 guidance on certain marketing terms based on research into consumer understanding, “Criteria for the use of the terms fresh, pure, natural etc. in food labelling,” was still the key resource for this ruling.

It was stated that products described as natural should be made using ingredients “produced by nature and not the work of man or interfered with by man”, and which had only been subjected to such processing as to render them suitable for human consumption. 

The two ingredients that were subject to issue in the ruling were sunflower oil and fat reduced cocoa powder. These required some more intensive processing but Go Ahead argued these processes had existed for many years and were not new technologies. Further, that both cocoa powder and sunflower oil were readily found in consumers’ store cupboards and were therefore likely to be considered natural to the average consumer. They noted that their competitors used these ingredients in similar products making similar claims.

The ASA considered consumers would understand that some processing may need to take place in order to make a naturally found ingredient fit for human consumption, but that such processing would be minimal. The ASA took literally the FSA’s Guidance where it was stated “processes such as … solvent extraction … are not in line with current consumer expectations of ’natural’, and so if used then products should not be referred to as natural food or ingredients”.  

The ASA understood that refining processes to extract sunflower oil from sunflower seeds generally involved the use of solvents. Further, the process used to create fat reduced cocoa powder involved the addition of potassium carbonate solution (an alkaline solution), to make the ingredient less bitter to taste. In addition the FSA Guidance stated that “acid or alkali treatment” was not in line with consumer expectations of “natural”.

The ASA acknowledged that the processes used to manufacture sunflower oil and reduced fat cocoa powder may have existed for a long time, however, they considered that the longevity of such processes would not alter the consumer understanding of whether a product processed in that way was natural or not. For those reasons, the ASA considered that neither sunflower oil nor fat reduced cocoa powder would be understood by consumers to be “natural” ingredients and the ad was misleading.

This seems to be quite a strict interpretation of what consumer understanding of ‘minimal’ processing might be in a mass produced product such as the Go Ahead biscuits, that the ASA accepted the consumers would understand some processing would be involved, and with ingredients clearly listed and easily understandable via the ‘store cupboard’ analogy. It would appear that the FSA ‘Guidance’ is being interpreted and enacted as though it were directly effective legislation in this instance.

  1. Sainsbury’s ‘fairly traded’ red label teabags (7 March

This is dealt with in detail in a separate blog post. However, in summary, the stipulation that has resulted from this ASA ruling is not that the existence of other 'Fairly Traded' schemes to that of the ‘Fair Trade’ trademark with associated logo is necessarily misleading, per se, but that it is important for food producers to make it sufficiently clear that products labelled 'Fairly Traded' were part of a separate scheme.

This is an important distinction and means there is no exclusiveness provided to ethical words and marketing but that confusion between specific schemes should be avoided; particularly where one might be thought to be taking advantage of the much broader knowledge-base and reputation of another.

  1. Health claims and interpretation of authorised claims - Protein World (21 March)    

This ruling concerned a tweet and Instagram post for Protein World re claims for ‘Carb Blocker Capsules’ that stated they could stop unused sugars from being stored as fat.

'Carb Blocker' online adverts were subject to two complaints and the ASA considered them in light of EU Health and Nutrition Claims Regulation 1924/2006 (the Regulation). Health claims were defined in the Regulation as those that stated, suggested or implied a relationship between a food, or ingredient, and health. Advertisers must show that health claims were authorised on the EU Register in relation to the relevant foodstuffs contained in that product and that they complied with the related conditions of use.

The ASA considered that in the context of a food supplement, consumers would consider “Carb Blocker” to refer to something that offered significantly greater prevention than the body could naturally achieve without its use, i.e. the significantly improved ability to prevent the storage of unused sugars as fat.  Also that consumers would understand that process to be a health benefit of the product. The claims and product name were therefore found to be health claims for the purposes of the CAP Code. Despite arguments to the contrary, the ASA did not consider that, in the context of the advertising claims, consumers would interpret the word “blocker” differently to “block” and “blocked”.

The adverts concerned:

  1. A tweet from TV personality Holly Hagan's Twitter account, stated “Always take my .. Carb Blockers Before a Cheat meal, contain [sic] natural ingredients and stop any unused sugars being used as fat #ad” and included a photo of Holly holding a burger with a jar of “Carb Blocker” on a table in front of her.
  2. An Instagram post stated “We are already planning our weekend treat at PW head quarters [sic] with carb blockers at the ready! Take 2 carb blockers 30 mins before a high carb meal to stop unused sugars being stored as fat in the body! Guilt free Treat…what a dream. Shop online proteinworld.com #proteinworld #lifestyle #cheatmeal #burger”. It included a photograph of a model holding a burger with a jar of Carb Blockers in front of her along with a plate of chips.

The capsules contained chromium. There were two authorised health claims on the EU Register for chromium: “Chromium contributes to normal macronutrient metabolism”; and “Chromium contributes to the maintenance of normal blood glucose levels”. The claims could only be used for foods which were at least a source of trivalent chromium.

Firstly, the ASA found Protein World did not provide evidence that demonstrated their product contained sufficient quantities of trivalent chromium to meet the conditions of use associated with either of the authorised health claims.

Secondly, whilst  marketers were allowed to exercise some flexibility in rewording authorised claims, this was provided that the reworded claim was likely to have the same meaning for consumers as the authorised health claim. The ASA found that the wording of the advertised claims did not have the same meaning as the authorised claims, which referred to normal physiological processes of the body relating to macronutrient metabolism and blood glucose levels, because they implied the product was significantly greater at preventing carbohydrates, including unused sugars, from converting into fat.

The ASA further found the ads attributed the health benefits to the advertiser’s product rather than to the substance to which the authorised health claim related, i.e. chromium.

An important consideration by the ASA was in relation to the trade mark or brand name itself. In the same way as any claim, a trade mark or brand name that may be construed as a nutrition or health claim, may be used provided that it was accompanied by a permitted nutrition or authorised health claim in that advertising. In such instances the accompanying nutrition or health claim must be relevant to the nutrition or health claim made in the trade mark or brand name. The product name “Carb Blocker”, would be understood as a health claim, and this was not accompanied by an authorised health claim in the ads. The ASA further concluded there were no authorised health claims on the EU Register, for any substance, which would be understood by consumers as having the same meaning as the health claim “Carb Blocker”. It was therefore found the product name “Carb Blocker” was in breach of the code and must not be used in future advertising.

  1. Irresponsible alcohol advertising – how much is too much? B&M Retail Ltd   (28 March)

The ASA upheld a complaint that an ad for B&Ms Giant Prosecco Glasses where each glass held an entire bottle of Prosecco ‘so you don’t have to get up for refills … Please drink responsibly” was irresponsible and breached the code because it encouraged excessive drinking.  This was despite the ‘drink responsibly’ message at the end, as it was only shown for a few seconds the ASA did not consider it sufficient to counteract the overall impression of the ad.

The ad promoted the whole bottle of prosecco being poured in to the glass and implied it was acceptable for one person to consume an entire bottle of prosecco in one sitting.  The ASA understood that the normal serving for prosecco was a single 125 ml glass and that the ad was therefore encouraging consumers to have six times the normal amount in one sitting. We also noted that the Chief Medical Officers’ low risk unit guidelines recommended that adults only drink 14 units of alcohol per week and that as a bottle of prosecco was roughly 8.2 units the ad was also encouraging consumers to have roughly 60% of the advised weekly units in one sitting. The ASA therefore concluded that the ad was irresponsible and encouraged excessive drinking.

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