ASA Adjudication on John Wyeth & Brother Ltd

Ad

A magazine ad for SMA follow-on-milk showed a picture of a baby pulling himself up on an armchair under text that stated “SAY MAMA” + {xxxxx KISSES} + … SMA GOLD SYSTEM WITH OMEGA 3 + 6 + IRON + “SAY MAMA” … = “DADDA” !!!. Text beneath stated “The right nutrition is critical in a child’s development. SMA follow-on-milk part of the SMA Gold System contains Omega 3+6 and an improved protein balance. It also includes iron to help support brain development”. The tagline stated “For every stage, a formula”.

Issue

The complainant challenged whether:

1. the claim that omega 3 and omega 6 were "critical in a childs development" could be substantiated, and

2. the ad was socially irresponsible because the claim "For every stage, a formula" was indirectly promoting the use of infant formula.

CAP Code (Edition 11)

Response

1. SMA Nutrition (SMA) said they did not believe the ad made either a direct or an implied health claim for omega 3 and omega 6. They argued that the claim "The right nutrition is critical in a childs development" was a factual statement derived from the Department of Healths report Infant Feeding Recommendation that stressed the importance of correct nutrition in the first years of a childs life.

SMA said Regulation (EC) 1924/2006 made a distinction between a health and a nutritional claim. They believed a health claim posited a relationship between a food or food category and a constituent of health, whereas a nutrition claim did not go so far as to imply a relationship with a specified health benefit, but rather claimed that a food contained a nutrient in an increased amount. Based on their understanding of this distinction, SMA believed the ad made a nutrition claim in relation to omega 3 and omega 6 and would be understood by readers to mean that those ingredients had been added to the SMA formula product. Because they believed no health claim was made in the ad, SMA said there was no requirement for them to make an application under the appropriate Regulation to make that claim. However, SMA said that EC Regulation (EC) 983/2009 authorised the use of the health claim "Essential fatty acids are needed for normal growth and development of children" for omega 3 and omega 6. They confirmed that SMA Follow-On Formula met the stated ingredient requirements to make that claim and believed that, even if the ad was interpreted as making a health claim, it was justified.

2. SMA explained that the Infant Formula and Follow-On Formula (England) Regulations 2007 stated that there should be no confusion between infant formula and follow-on formula in advertising. SMA believed the ad complied with this requirement because it clearly identified the product in the ad as follow-on formula. Furthermore, to avoid potential confusion, they said the ad carried the caveat "SMA Follow-on Milk is for babies over 6 months" to make clear they were promoting follow-on formula. SMA said the phrase "For every stage, a formula" related to the overall theme of the ad which was based on the creation of a fictional mathematical formula between the parent and the baby to encourage the baby to reach the next stage. SMA argued that it was common to refer to early child development in terms of stages and believed that the ad clearly focused upon the stages experienced by babies over 6 months. SMA also sent the ASA details of its product range.

Assessment

1. Not upheld

The ASA considered that the claim "The right nutrition is critical in a childs development" was not clearly distinguishable as a citation from a Government report. In the context of the ad, we considered the statement was likely to be read in conjunction with the following claim: "SMA follow-on-milk part of the SMA Gold System contains Omega 3+6 and an improved protein balance." We therefore considered that the ad was likely to be interpreted as positing a relationship between omega 3 and omega 6 in SMA follow-on formula milk and the development of a child. We noted that inference went beyond stating that the product merely contained those ingredients as permitted under Regulation (EC) 1924/2006 for a nutritional claim and considered that the ad made a health claim. However, we noted the European Food Safety Authority (EFSA) had approved the claim "Essential fatty acids are needed for normal growth and development of children" for products that contained specified amounts of omega 3 (ALA) and omega 6 (LA) fatty acids. We considered that the words "critical" and "needed", in the context of child development, were analogous and considered that the claim was consistent with the permitted conditions of use.

We therefore concluded that the claim was acceptable.

On this point, we investigated under CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 50.1 (Health and beauty products and therapies) but did not find the ad in breach.

2. Upheld

We understood that SMA had three core products: First Infant Milk, Follow-on Milk and Toddler Milk and noted the ad featured the second product in SMAs three stage product range (i.e. Follow-on Milk). While we understood that SMA had taken appropriate steps to feature follow-on products and older babies in the ad, we did not agree that the claim "For every stage, a formula" was likely to be interpreted by most readers as relating to a mathematical formula representing the childs cognitive development.

We noted that SMAs product range only included three stages and considered it was unclear how the early stages of child development were defined and whether the word "stage" referred to an SMA product or the development of the child. We acknowledged that the ad included a statement to clarify that follow-on formula was intended for babies over six months; however, in conjunction with the claim "For every stage, a formula", we considered this caveat was likely to add to the ambiguity of the term "stage" rather than serve as a qualification.

We considered the claim "For every stage, a formula" in conjunction with the pack shot of the product that stated "2 Follow-on Milk from 6 months" implied that SMA products could be used for the entirety of a childs development which included the period from birth. We concluded the ad indirectly promoted infant formula and was therefore irresponsible.

On this point, the ad breached CAP Code clause 2.2 (Social responsibility.)

Action

The ad must not appear again in its current form.

Adjudication of the ASA Council (Non-broadcast)