ASA Adjudication on Hero UK LLP

Ad

a. A magazine ad, for "Fruit2day" drink, showed a pineapple, a Swiss army knife, and a bottle of the drink. Text stated "now there's an easier way to eat your daily fruit. We all know how important it is to get your 5 a day. But it's just so inconvenient ... Thankfully new Fruit2day's real fruit pieces make it easy and convenient to get 2 of your 5 a day in a bottle, wherever you are."

b. A TV ad, for "Fruit2day" drink, showed a woman sitting at her desk drinking a bottle of "Fruit2day". The voiceover stated "Because Fruit2day contains real fruit pieces, it counts as 2 of your 5 a day".

Issue

The complainants, who believed that the Department of Health (DH) guidelines stated that fruit juice could count only as a single portion of fruit regardless of the quantity drunk, challenged whether Hero UK LLP (Hero) could substantiate the claim that the product comprised two portions of fruit.

Response

Assessment

Upheld

Hero said they agreed with the DH position that people should consume more fruit and vegetables and said they had developed a convenient way to help consumers reach the five a day target.  They said Fruit2day was an innovative and unique fruit snack that should not be classified as a fruit juice or smoothie; although all three varieties contained juice, the product was characterised by the combination of fruit pieces, crushed fruit, purees and juice.  They asserted that the DH's recommendations that fruit juice or a smoothie counted only as one portion, which they believed would not have taken their product into account, should not apply to their product as it could not be classed as either a juice or a smoothie.  

Hero said one reason the DH stated that fruit juice could count only as one portion of the five a day recommended intake was the reduction in fibre levels that resulted from the juicing process; they said, because Fruit2day contained real fruit pieces, that did not apply.  They said they had contacted the DH before they launched the product; they asserted that the DH told them the product did not fit into their juice category or their smoothie category and they were not willing to change their guidelines to accommodate Hero's new product; the DH could not therefore support Hero by allowing them to use their five a day logo.

Hero sent reports from two independent UK nutritional experts with whom they worked when developing Fruit2day.  One of the reports stated that the "fruit" in Fruit2day consisted of 49%  chopped solid fruit pieces, crushed fruits and fruit purees together with 51% juice, which distinguished it from other juices or smoothies on the market.  It stated that the 48% "fruit" was equivalent to 1.3 portions of fruit and the 51% juice content equalled 0.7 of a portion which made a total of two portions.  Both reports stated that Fruit2day consisted of two portions of fruit towards the five portions of fruit and vegetables a day recommendation.

Hero said they worked closely with their local Trading Standards Officer (TSO) who approved all their packaging before launch and advised them not to refer to the product as a fruit juice or smoothie because it was a unique snack made from a combination of fruit pieces, crushed fruit, purees and juice.

The Broadcast Advertising Clearance Centre (BACC) said they had sent Hero's evidence to their own consultant who had approved the claims.  They said they were confident the claim "2 of your 5 a day" was robust enough to be aired based on their consultant's approval.

The ASA took expert advice.  The expert produced a report after assessing the content of the product and the two reports by Hero's nutritional experts; our expert's report concluded that, under the DH guidelines, the product did not provide two portions of fruit towards the five a day recommended portions of fruit and vegetables.  The expert said the crushed fruit and purees in the product could not be counted as intact fruit but should be categorised as juice, which could count only as one portion of the recommended daily five portions of fruit and vegetables no matter how much was consumed.  

The expert stated that DH guidance did not allow part portions to be added together and therefore, even if the purees and crushed fruit could count as fruit, Hero should not have added 1.3 portions of fruit to a 0.7 portion of juice to obtain a total of two portions.  The expert said the product would need to provide 80g of chopped fruit and 150ml of juice and or puree and or crushed fruit for Hero to be able to claim two portions.  The expert pointed out that that was not possible with a product of 205ml and believed the product supplied around only 30g of intact fruit.  The expert concluded therefore that, under the DH guidelines, the product did not provide two portions of the recommended daily five portions of fruit and vegetables.

We sent the expert report to Hero.  Hero believed the guidelines were not clear on the issue of purees and only mentioned that 100% concentrated purees, such as tomato puree, could count only as one portion a day no matter how much was consumed; they said they could find no mention of the issue of crushed fruit.  They pointed out that their purees were not concentrated and argued therefore that their purees and crushed fruit should be classified as fruit.

Hero said they did not agree with the ASA expert's interpretation of the guidance on the adding of portions and believed the guideline was intended to stop products making claims that they supplied part portions, e.g. "one and a half of your five a day", not to stop the adding of portions.  They said the DH encouraged consumers to increase vegetable intake by adding a mixture of vegetables to products such as prepared cooking sauces.  They pointed out that if the ASA expert's assessment of part portions was applied such vegetable content would not count towards the five a day target unless an entire portion of at least one type of vegetable was added, e.g. 0.7 of a portion of peppers and 0.6 of a portion of courgettes would not count, despite adding up to 1.3 portions in total, since both were "part portions".  They did not believe that was what the DH intended or expected.  They also sent a leaflet, for a supermarket, which contained the DH five a day logo on a recipe for a stir fry which was made up of "part portions" of different vegetables.  They pointed out that they were making a whole portion claim and argued that the guidelines on this point did therefore not apply to them.  They believed it was common sense and in line with the spirit of the five a day campaign, which was to encourage people to eat a variety of fruit and vegetables, for them to add part portions together.    

We sent our expert's report to the BACC.  The BACC's expert believed the definitions of purees and crushed fruit were not clear from the DH guidelines.  She said it was also not clear from the guidelines that part portions could not be added together.  She believed the DH guidelines on part portions were put in place to stop claims that a product could provide part portions, not to stop the adding of portions.

Hero pointed out that their two experts, the BACC and their TSO had thought the claim acceptable.  They believed the claim should be viewed not just on the DH guidelines but in the wider context of whether it was misleading; they maintained that the product did provide two portions of fruit.  

We contacted the DH who told us they had informed Hero before the product was launched that, in their view, the product could not claim to provide two portions of fruit a day.  We also sent the DH our expert's report and they said they agreed with the report and that the findings were in line with the five a day message.

We also contacted the TSO who told us he had looked at Hero's two expert reports and had thought that they justified Hero's claim.  

We noted the DH guidelines could be open to interpretation on the exact definitions of what counted as intact fruit and what forms of fruit could count only once a day no matter how much was consumed.  We also noted, however, Hero had been told by the DH, before they launched the product that, under their guidelines, they could not claim it could provide two portions of fruit a day.  We noted the DH supported our expert's report that under the DH guidelines the crushed fruit and purees in the product should be classed as juice and not fruit and that as a result the product could claim only one portion of fruit towards the daily five recommended portions of fruit and vegetables.  

We noted Hero believed the claim should not be viewed solely under the DH guidelines but we considered that the claim would be seen to be based on the five a day campaign introduced and promoted by the DH.  We considered that the product should therefore conform with the DH guidelines.  We concluded that, because the product did not provide two portions of fruit under the DH guidelines the ads were misleading.  

The ads breached CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness) and CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising) and 5.2.1 (Evidence).

Action

The TV ad should not be broadcast again in its current form.

We told Hero to amend their non-broadcast ads to avoid the impression that their product could supply two portions of fruit towards the five a day recommended portions of fruit and vegetables.