ASA Adjudication on Arla Foods Ltd

Ad

A TV ad, for Lactofree milk, stated "Lactofree, the full taste of real milk, just without the lactose".

Issue

Two viewers challenged whether the ad was misleading and potentially harmful, because they understood Lactofree contained 0.05% lactose.  

BCAP TV Code

Response

Arla Foods Ltd (Arla) explained that approximately 50% of the lactose present at the start of the manufacture of Lactofree was removed by means of filtration. They said the remaining lactose was hydrolysed (or broken down) into glucose and galactose (sugars that were digestible for people who were lactose-intolerant) by the addition of the appropriate amount of the lactase enzyme.  They said the finished Lactofree product was then tested on an ongoing basis to ensure that, so far as it was scientifically possible, no lactose was present.  

Arla said they used, on a day-to-day basis, the only UK-accredited test for the detection of lactose; the liquid chromatography (HPLC) method.  They said that method was widely accepted as a reliable, accurate and sensitive standard test for the detection of chemical substances generally and like all such scientific tests, had a lower limit of analytical detection.  They said in this case the level was 0.05% which, when compared to other detection tests, meant that it was an extremely sensitive test.  They said their tests showed that Lactofree contained 0% lactose at an analytical detection level of 0.05%.  They said a detection level of 0.05% did not mean that lactose was present below that level, but rather that if it was it could not be detected.  They said, based on the accuracy and reliabilty of the HPLC test and the consistent result of 0% lactose present at 0.05% detection level, they were confident that there was no lactose present in Lactofree.  

Arla said that was reinforced by the results of a recognised European test, which used a more complex and even more sensitive alternative detection method. They said that method had an extremely low limit of detection at 0.01% and research done in the Netherlands showed that Lactofree contained 0% lactose. They said, however, that that testing method was not used in the UK  for economic viability reasons (the high level of capital expenditure that would be required by a laboratory to perform the test and the low number of potential customers for it).

Arla said they had decided to include the statement "with less than 0.05% lactose" on the Lactofree packaging to inform consumers positively and to ensure complete transparency.  They believed, despite the European tests that proved scientifically that Lactofree contained no lactose, the packaging should reflect the results from the UK-accredited HPLC tests.  

Arla said, even if a trace of lactose was present in the product (which they did not believe there was), they understood that no harm could be caused to a lactose-intolerant consumer's health. They highlighted information on the Food Standards Agency's (FSA) website which made it clear that lactose intolerance was not the same as an allergy to milk, which caused more severe symptoms. They said that although they appreciated that lactose intolerance could cause unpleasant symptoms in an affected person, they understood from current medical information and opinion that lactose intolerance was a medically harmless condition that could be efectively managed.  Therefore if a lactose-intolerant person did consume small amounts of lactose then they would not be in any danger and would not cause themselves any physical damage.  They said there did not seem to be any clinical studies, which had assessed the lowest level of lactose required to produce symptoms in a lactose-intolerant person but a consultant physician and gastroenterologist had stated that the current accepted practise was that at least 5 g of lactose would need to be ingested by an adult before any effects were seen.  They said even if Lactofree did contain below 0.05% lactose it would still be well below the 5 g margin.  Arla said they therefore believed that the "without the lactose" claim was substantiated and would not mislead viewers.

Clearcast said they had noticed the claim on the packaging that the product contained "less than 0.05% lactose" and they had queried that before approving the ad.  They said Arla had explained to them that that figure related to the detection level of the testing apparatus within the UK but that they were confident the product was lactose free.  Clearcast said they had requested details of the testing procedure and had obtained a view from an expert consultant, who had been satisfied that the "without the lactose" claim was accurate.  They said their consultant had noted Arla had adopted a transparent approach by displaying information about the detection level on the packaging, although they had sufficiently proved that the product was lactose free.

Assessment

Not upheld

The ASA noted the HPLC tests demonstrated that Lactofree contained 0% lactose but at a detection level of 0.05%.  We noted Arla had also used another testing method, with a more sensitive level of detection, which had also found no lactose was present. We noted Arla had chosen to include text on the packaging of Lactofree that stated "with less than 0.05%" to reflect the detection level of the UK-accredited testing methods.  

We considered that viewers were likely to understand from the ad that no lactose was present in Lactofree and that it would be safe for those with lactose intolerance to drink it without any adverse effects.  We understood that it was generally accepted that the lowest amount of lactose that could trigger symptoms in someone who suffered from lactose intolerance was 5 g.  We noted, therefore, that even if there was less than 0.05% lactose present in Lactofree it was unlikely to have any effect on someone who suffered from lactose intolerance.  Because Arla had demonstrated that they had tested the product to the UK-accredited level and no lactose had been found, we concluded that the ad was unlikely to mislead or cause harm to viewers.

We investigated the ad under CAP Code clauses 5.1 (Misleading advertising), 5.2.1 (Evidence), 5.2.2 (Implications) and 6.7 (Health and safety) but did not find it in breach.

Action

No further action required.

Adjudication of the ASA Council (Broadcast)