A recent adjudication against Kellogg’s by the Advertising Standards Authority (ASA) looked at what is ‘representative’ for a comparative claim. EU legislation on nutrition claims (Regulation 1924/2006) allows a reduced fat comparative claim if the product in question is compared to a “range of foods” of the same category, where the product was at least 30% lower in fat than the average fat content of the products selected as the basis of the comparison.
The ASA held that taking the top 75% of porridge products, based on unit sales, (resulting in some 36 competitor products being examined,) was not adequately ‘representative’ of the porridge market in the making of a reduced fat comparison claim. The figures provided by Kellogg’s substantiated the 30% reduction threshold necessary to make the reduced fat claim; however, the database of porridge products showed some 307 products in existence and the ASA were concerned “ the products selected on the basis of market share could lead to porridges with above average fat contents being over represented.”
According to the ASA it will be necessary to show that the comparator products selected are also “representative of the category” in relation to the nutrient concerned. In this case 75% unit sales were held to be insufficient to be representative of the category and rather, in order to make a comparison claim, the overall composition of the food category should have been considered.
The complaints in this case were further upheld due to the necessity to add some liquid for the product to be consumed specifically as ‘porridge’ and the possible change to the “30% less fat” nutritional value once this had taken place.
Market dominance is therefore insufficient, in itself, to be representative of a category of products.
There remains a ‘grey area’ as to what may or may not constitute an appropriate representation of the range of foods from the same category, but where primarily unit sales are considered it is advised that an overall assessment is carried out to substantiate that the results are not skewed within the sector.