ASA Adjudication on Müller Dairy (UK) Ltd

Ad

A TV ad, a national press ad and an ad in an in-store magazine, for Müller's "Little Stars" range of children's jellies, fromage frais, yoghurts and yoghurt drink products.

a. the TV ad showed scenes of young children, including a crawling baby, playing with a frisbee and a dog on a sandy beach on a bright sunny day. The soundtrack "I Ain't Got No Life" played throughout. The children were then depicted sitting with a young woman by a beach umbrella. They ate pots of Little Stars whilst she spoon-fed a pot to the baby on her lap. A female voice-over stated "New Müller Little Stars are made from as little as five ingredients, all of which are pure and natural, so it's almost like getting a helping hand from Mother Nature". The final scene showed a six-pack of the fromage frais from the range, nestled in grass and daisies, above the caption "100% natural ingredients".

b. the national press ad depicted a six pack of the fromage frais held out in the palm of a hand composed of green leaves amidst foliage at the edge of a field . Text stated "NEW Müller Little Stars. A helping hand from Mother Nature. Help your little stars grow and develop with our delicious new Fromage Frais, Smooth Yoghurts, Fruit Juice Jellies and Yoghurt drinks made from 100% natural ingredients". A daisy image in the left-hand corner of the ad also contained the text "100% natural ingredients" at its centre.

c. the ad in the in-store supermarket magazine featured a close-up of the packaging of a six-pack of the fromage frais. The ad was headlined "Big news for your Little Stars". Text on-pack, which stated "100% natural ingredients. Suitable from 6 months", was visible. Three daisy graphics identical to those on-pack appeared beneath the product and text next to them read "100% natural ingredients", "full of goodness", "great tasting range".

Issue

Yoplait Dairy Crest Ltd (Yoplait) challenged:

1. whether the claim "100% natural ingredients" in ads (a), (b) and (c) was fair and accurate. In particular they referred to the blackcurrant juice from concentrate in the yoghurt, yoghurt drink and jelly, orange juice from concentrate in the jelly, inulin in the yoghurt and yoghurt drink, corn starch in the fromage frais, yoghurt and yoghurt drink, gelatine in the jelly, and colour additives in the fromage frais, yoghurt and jelly. They said they believed some of the ingredients might not accord with best practice guidance as set out in the Food Standards Agency's (FSA) "Criteria for the Use of the Terms Fresh, Pure, Natural Etc in Food Labelling" (2002);

2. whether the claims "A helping hand from Mother Nature" in ad (b) and "it's almost like getting a helping hand from Mother Nature" in ad (a) misleadingly implied all the ingredients were completely natural;

3. whether the claim "from as little as five ingredients" in ad (a) was misleading, because they believed the products actually featured were made from seven or more ingredients.

CAP Code (Edition 11)

BCAP TV Code

Response

1. Müller Dairy (UK) Ltd (Müller) said that the Little Stars range had been launched in July 2006 in response to consumer demand and increasing interest in children's health and nutrition. They said the range had been designed to contain natural ingredients and avoid artificial additives or artificially produced ingredients and to be "best in class" nutritionally. They said, as far as possible, they had sought to use only natural ingredients which a consumer could easily recognise and understand and which might even be used in home cooking. They believed the only ingredient in the range that consumers might not immediately recognise was inulin, which was dietary fibre from chicory. Müller said their developers had been briefed to ensure that all the ingredients met the term "natural ingredient" in the Government Food Advisory Committee (FAC) "Review of the Use of the Terms Fresh, Pure, Natural Etc In Food Labelling" (2001) (FAC Review 2001). Moreover, they said they did not believe their ads were likely to mislead consumers. They said the colour additives in the range were annatto, carmines and beetroot extract.

Müller argued that an average consumer would understand from the packaging of Little Stars that the products were self-evidently manufactured foods and therefore that some processing of the ingredients would have taken place.  They believed consumers did not object to processing for reasons of safety or to make ingredients suitable for consumption. They said, if it were logistically possible to explain the factory scale production and food science underpinning their claim in the space available in an ad, consumers would accept that the processing which had taken place was necessary for production and that all the ingredients were derived from nature. They said, for obviously manufactured products such as Little Stars, the scale of the production of ingredients would not be a factor for consumers when considering whether the ingredients were natural or not.

Müller said the target audience for their ads would in large part, although not exclusively, be parents and care-givers of young children and that, by the nature of their responsibilities, these consumers were likely to be more circumspect than average. They said they had sold in excess of 365 million pots in more than two years since the launch of the Little Stars range and had received no complaints about the claim from members of the public, which they believed indicated their claims did not mislead.

Müller argued that their claim "100% natural ingredients" meant that all the ingredients in Little Stars were natural, not that each individual ingredient was "100% natural". Müller believed consumers would understand that all their ingredients were natural, as in "of, relating to or concerning nature" and "involving or derived from living organisms" and said their target audience wanted products free from artificial additives and artificially produced ingredients. Müller provided examples of other traders using the claim "natural ingredients" in advertising and labelling. They said the absence of widespread consumer protest demonstrated the sorts of ingredients that consumers were likely to recognise as "natural.

Müller said the Food Standards Agency (FSA) Criteria on "The Use of the Terms Fresh, Pure, Natural Etc in Food Labelling" (2002) (FSA Criteria 2002) mentioned by the complainant Yoplait, was an abridged summary of the FAC Review 2001, and pointed out the FSA document was "best practice" guidance for marketers and did not have a mandatory or legal status. They said, when assessing whether each of the ingredients in the Little Stars range challenged by Yoplait was natural, a number of factors ought to be taken into consideration, such as consumer recognition and acceptance, ingredients recognised as natural by longstanding convention, specific case law and statute and the way in which trade descriptions were informed by legitimate industry practices.

Müller provided information about each of the challenged ingredients in Little Stars as at the time the ad appeared, including processes of production. They engaged an independent expert to provide a technical submission on each of the ingredients challenged by Yoplait. Müller's expert said that, in his view, Müller's target consumers were likely to be looking for products free from artificial "nasties", which they could feel good about feeding to their children. He said that, whilst consumer belief that natural additives, foods and ingredients were better for you or less detrimental to health was not one that necessarily held up under scientific scrutiny, nevertheless he considered that by providing a "100% natural ingredients" range that was free from artificial additives and artificially produced ingredients, Müller was fulfilling consumer demand rather than misleading consumers.

Müller's expert said there was a clear distinction to be drawn between a natural ingredient and a natural process. He said that a natural ingredient was a product that occurred in or was derived from nature and was either used "as was" or had been extracted from its source and purified in a way that left the target material substantially unchanged, following the minimal processing necessary to make it suitable for human consumption, or in accordance with any other legally required criteria necessary to ensure safety. He said general public perception of the "naturalness" of an ingredient should be a key factor. He said, whilst the type of process used in industrial food production might disqualify that process from legitimately being described as a "natural process", he did not believe the material being processed was thereby automatically rendered "unnatural" in consumer understanding. He also emphasised that purification by definition meant the removal of extraneous materials from the desired material.

Müller's expert said the essential criterion for "natural" developed by the FAC Review 2001 was that the term "natural" without qualification should only be used to describe single foods of a traditional nature to which nothing had been added and which had been subjected only to such processing as to render them suitable for human consumption. He said the Review also stated it was legitimate to describe food ingredients from recognised food sources as "natural" if they met the same processing criteria. He said, in his opinion, a raw material which met one of the basic criteria for natural did not lose that natural status by being processed to the extent necessary to make it suitable for consumption. He said that "suitability" for consumption was not explicitly defined in either the FAC Review 2001 or the FSA Criteria 2002, but in his view the concept should be interpreted much more widely than in terms simply of "safety", although that must be a major consideration, and should be read to include such additional parameters as taste, appearance, stability and functionality amongst others. He said in his judgement the precise parameters of "suitability" for consumption should be considered on a case by case basis for individual ingredients.

Müller's expert said, in his view, the natural status of the ingredients in Little Stars challenged by Yoplait was a complex area that should be considered in relation to each of the sequential steps used in their separation and purification and could not be determined simply by generalities. He believed none of the processing undergone by the ingredients challenged by Yoplait rendered Müller's ingredients "not natural". He said, after reviewing the process of production information provided by Müller for each ingredient in detail, it was his overall conclusion that all the challenged ingredients had been produced in accordance with the recommendations of the FAC Review 2001 and FSA Criteria 2002.

In response to the complaint about the TV ad, Clearcast said Müller and their advertising agency had explained that the ingredients in Little Stars had been specified to meet the FAC Review 2001 and they had accepted that as being adequate evidence for the term "100% natural ingredients".

2. Müller pointed out that the claims "A helping hand from Mother Nature" and "It's almost like getting a helping hand from Mother Nature" were hyperbole, but nevertheless asserted it was legitimate to describe the Little Stars range as comprised of "100% natural ingredients" and that these claims were reasonable in that context. They said the imagery in the ads also used hyperbole and highlighted the daisies in ad (a) "magically" springing to life in the final shot and the fantastical hand made from leaves holding the product in ad (b). They said that "helping hand" indicated something short of completely natural, and that was responsible restraint on their part, because Little Stars were manufactured products, and that "almost like" in the TV ad served to restrain the claim still further.

Clearcast said they had approved the claim "It's almost like getting a helping hand from Mother Nature" in the TV ad because they believed that did not imply the ingredients had come directly, and unprocessed, from nature but were derived from nature. They said they had accepted that the ingredients in the Little Stars range were "natural" under the appropriate regulations and guidance and that it was reasonable therefore to say that these products were "almost like getting a helping hand from Mother Nature".

3. Müller said the TV ad had been designed to raise awareness of the new Little Stars range and not to draw attention to specific items in the range: they pointed out that only in the final scene was any product actually identifiable and that was a pack of the fromage frais.  They provided substantiation for the number of ingredients in each of the products in the range and pointed out that those depicted clearly in the TV ad had seven or fewer ingredients. They said they did not believe the claim was misleading given that the TV ad was for the entire Little Stars range and one of the products in that range, the blackcurrant jelly, had only five ingredients.

Clearcast said the products shown in the ad contained six or seven ingredients and were shown fleetingly. They explained they had been given confirmation of the number of ingredients in each item of the range before clearing the ad for broadcast, and believed the claim "New Müller Little Stars are made from as little as five ingredients" was an accurate description of the ingredients in the range advertised.

Assessment

The ASA considered ads (a), (b) and (c) under the CAP and CAP (Broadcast) Code rules that were current at the time the ads appeared in 2006.

1. Upheld

We noted the term "natural" in relation to food ingredients was specifically legally defined in EU legislation when applied to flavourings, tuna and bonito and mineral waters. However, we noted there was no overarching legal definition of the term in relation to food and food ingredients. We noted that both the FAC Review 2001 and the FSA Criteria 2002 on "Fresh, Pure, Natural Etc." set out recommendations and guidance for the food industry, but were not mandatory. We understood that the FAC Review had been intended to provide guidance to the Food Standards Agency and that the FSA's Criteria were "best practice" guidelines concerned with food labelling.

We noted Müller's expert's argument that the FAC Review 2001 contained a broad discussion of the essential background to the issues regarding the use of the term "natural" in relation to foods and ingredients which was absent from the FSA Guidance 2002. However, we also noted that in respect of the technical content of the recommended best practice guidance for the use of the term "natural", the FAC Review 2001 and the FSA Criteria 2002 were almost identical and both documents considered that in the context of food, natural meant "produced by nature, not the work of man or interfered with by man" and related to both the origins of an ingredient and the processes to which it might have been subjected. We also noted those guidance documents stated that it was misleading to use the term to describe foods or ingredients that used chemicals to change their composition or comprised the products of new technologies, including additives and flavourings that were the product of the chemical industry or extracted by chemical processes. We further noted those documents stated that ingredients subjected to traditional cooking processes such as baking, roasting or blanching and traditional methods of dehydration were likely to fall within the scope of "natural" in consumer understanding, but that other processes such as concentration, pasteurisation, sterilisation, bleaching, oxidation, smoking and tenderising with chemicals and hydrogenation were not.

We acknowledged Müller's argument that their claim "100% natural ingredients" was intended to refer to the fact that, in their view, all the ingredients in Little Stars were "natural". We nevertheless considered that the "100%" claim was likely to strengthen the "natural" claim in consumer understanding, and would also be likely to suggest each ingredient was "100% natural".

We also accepted that consumers were likely to understand Little Stars products to be manufactured foods. However, we considered that a manufactured food that was free from artificial (synthetic) additives was not, on that basis alone, likely to be understood to be comprised of "100% natural ingredients" by consumers.

We noted Müller's belief that there was widespread use of "natural" to mean ingredients "derived from living organisms" in food labelling and other advertising, which indicated consumer acceptance of this usage. We considered that consumers were likely to judge whether ingredients were "natural" or "100% natural" in terms of both their origin and any processing undergone, not simply their derivation from biological material. We also considered that the meaning of the term "natural" or "100% natural" in food advertising was something that consumers would understand in terms of the overall context of the ad, and that they were likely to trust that such a claim could be substantiated.

We noted the views of the Food Standards Agency, in conjunction with the FSA's best practice guidance "Criteria for the Use of the Terms Fresh, Pure and Natural Etc in Food Labelling" 2002 as part of our investigation.

We concluded that consumers were likely to understand the corn starch In Müller's Little Stars to be a "natural" ingredient given the manner in which it had been processed. We considered that consumers were likely to understand the annatto in Little Stars to be a "natural" ingredient given the manner in which it had been processed and because it was a designated colour additive obtained from the annatto tree, a recognised food source whose derivatives were also used as a spice. We noted that the carmines in Little Stars were a designated colour additive obtained from cochineal insects. We concluded that, whilst UK consumers might not consider insects to be naturally edible in their raw state, it was unlikely to mislead to describe the carmines in Little Stars as a "natural" colour on those grounds. We noted that the FSA and industry were at present discussing the classification of "natural colours".

We noted the gelatine in Müllers Little Stars jellies, although derived from food grade animal skins, had been produced and refined by processes including acid and alkali treatment, sterilisation and ion-exchange filtration. We also noted inulin, whilst derived from chicory roots, was a commercially refined substance that had had minerals and colour removed from its raw state by particular filtration processes, and that the blackcurrant, orange and beetroot juice used had been subject to concentration and pasteurisation.  We considered that consumers were unlikely to consider the industrially refined and processed gelatine and inulin in Little Stars as "natural" or "100% natural", and also were unlikely to consider juices that had been industrially concentrated and pasteurised, as distinct from freshly squeezed juices, to fall within the definition of "natural" or "100% natural" without qualification.

The ASA acknowledged that Müller had taken care to source all the ingredients in Little Stars from biological rather than synthetic materials, and also noted that they had selected grades of ingredients subjected to a lesser degree of processing than some others available on the market. Nevertheless, we concluded that, because of its absolute nature, the claim "100% natural ingredients" in ads (a), (b) and (c) was likely to mislead.

On this point, ad (a) breached CAP (Broadcast) TV Advertising Standards Code rule 5.1 (Misleading advertising). We also investigated ad (a) under rule 5.2.1 (Evidence) but did not find it in breach.

On this point, ads (b) and (c) breached CAP Code clause 7.1 (Truthfulness). We also investigated ads (b) and (c) under clause 3.1 (Substantiation) but did not find them in breach.

2. Upheld

We acknowledged Müller's argument that the claim "a helping hand from Mother Nature" was hyperbole and noted the claim in the TV ad differed from the print ads by stating "it's almost like getting a helping hand from Mother Nature". We also acknowledged Müller's argument that some of the imagery in ads (a) and (b) was fantastical. We noted Müller's argument that, hyperbole notwithstanding, because they believed it was legitimate to refer to their products as comprised of "100% natural ingredients", it was reasonable to refer to "a helping hand from Mother Nature" in that context.

We noted the TV ad depicted the products in the context of a number of simple and "natural" images such as sun, sea, sand, children playing, grass and daisies. We concluded that, in the context of these images and the claim "100% natural ingredients", "It's almost like getting a helping hand from Mother Nature" was a strong claim (despite the qualification "it's almost like") which implied that the ingredients were less processed and closer to nature than they were.

We concluded that, in the context of the foliage depicted in ad (b) and the daisy logos shown in ads (b) and (c), together with the claim "100% natural ingredients" in each ad, "A helping hand from Mother Nature" was a strong claim which implied that the ingredients were less processed and closer to nature than they were.

On this point, ad (a) breached CAP (Broadcast) TV Advertising Standards Code rule 5.1 (Misleading advertising) and ads (b) and (c) breached CAP Code clause 7.1 (Truthfulness).

3. Not upheld

We noted the blackcurrant jelly product in the Little Stars range (2006) had five ingredients only and those most clearly shown in the TV ad were the packs of fromage frais, which had had six or seven ingredients depending on the flavour.  We noted the claim was "from as little as five ingredients" and considered that viewers would understand the TV ad to be promoting the Little Stars range as a whole, not a specific item from the range. Whilst we noted one item in the range contained ten ingredients, we also noted that the average number of ingredients in each Little Stars product was seven. We concluded the claim was unlikely to mislead on these grounds.

On this point, we investigated the TV ad under CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising, 2006) and 5.2.1 (Evidence), but did not find it in breach.

Action

The TV ad and print ads must not be shown again in their current form.

Adjudication of the ASA Council (Broadcast)

Adjudication of the ASA Council (Non-broadcast)