ASA Adjudication on Muller Dairy (UK) Ltd

Ad

A national press ad, magazine ad and a TV ad for Müller Little Stars Fromage Frais:

a. The national press ad showed an image of a grey, solid looking number 15 next to a sign that stated "PETITS FILOUS". The ingredients were listed inside the outline of the number 15; "FROMAGE FRAIS, WATER, RASPBERRY PUREE FROM CONCENTRATE, FRUCTOSE, SUGAR, VITAMIN D, MODIFIED MAIZE STARCH, CONCENTRATED ELDERBERRY JUICE, STABILISERS: LOCUST BEAN GUM, GUAR GUM, ACIDITY REGULATOR CITRIC ACID, CALCIUM CITRATE, CONCENTRATED ARONIA JUICE, CALCIUM PHOSPHATE, FLAVOURINGS". Text beneath that image stated "It's simple, Müller®Little Stars®fromage frais has less than half the ingredients of Petits Filous fromage frais." Beneath that text the ad showed an image of a pink number seven in an embroidered style; it was on grass with a tree next to it and a sign that stated "MÜLLER®LITTLE STARS®". The ingredients were listed inside the number seven; "RASPBERRY PUREE, SUGAR, WATER, CORNFLOUR, FROMAGE FRAIS, CARROT JUICE CONCENTRATE, NATURAL FLAVOURINGS". Small print stated "Refers to Yoplait Petits Filous Raspberry Fromage Frais Fortified with Vitamin D and Calcium versus Müller Little Stars Fromage Frais". Text at the bottom of the ad stated www.checkthelabels.co.uk.

b. The magazine ad showed a small child licking a wooden spoon. Text stated "With just 6 natural ingredients you could make it yourself. Luckily you don't have to. We only use 100% natural ingredients, including wholemilk, which means Müller®Little Stars®fromage frais is ideal from weaning onwards and provides a natural source of dairy calcium for your little ones". The ad showed an image of a Müller Little Stars fromage frais multipack.

c. The TV ad showed a woman talking to other mothers on a string telephone made with yoghurt pots. She said "Hello Mums, I've just heard something I'd like to share with you all. Did you know that Petits Filous fromage frais contains up to 15 ingredients? Müller Little Stars fromage frais only uses 7 ingredients and none of those are E numbers. Next time you're shopping, check the labels and see for yourselves". A voice-over stated "Müller Little Stars Fromage Frais, 100% natural ingredients". On-screen text stated "Refers to Yoplait Petits Filous Raspberry Fromage Frais Fortified with Vitamin D and Calcium versus Müller Little Stars Raspberry Fromage Frais … 100% Natural Ingredients www.checkthelabels.co.uk"

Issue

Yoplait Dairy Crest Ltd (Yoplait) challenged whether:

1. the comparison in ad (a) was misleading, because it implied that Müller Little Stars were healthier than Petits Filous fromage frais because they contained fewer ingredients;

2. ad (a) denigrated Petits Filous fromage frais, because it portrayed the product in a negative light and suggested it was less healthy than was the case;

3. the comparison of ingredients in ad (a) was misleading, because certain ingredients for Petits Filous were given undue emphasis whereas they made up only a small percentage of the product or were present in a similar amount in Müller Little Stars;

4. the claim "with just 6 natural ingredients" in ad (b) was misleading, because only the peach variety of Müller Little Stars contained six ingredients whereas the other varieties contained seven;

5. the comparison in ad (c) was misleading, because it implied that Müller Little Stars were healthier than Petits Filous fromage frais because they contained fewer ingredients; and

6. ad (c) denigrated Petits Filous, because it implied that the presence of additional ingredients made it unhealthy.

7. Yoplait and a member of the public also challenged whether ad (c) was misleading, because it implied that E number ingredients were inherently harmful or unhealthy.

CAP Code (Edition 11)

BCAP TV Code

Response

1. & 5.  Müller said the claim "it's simple, Müller Little Stars fromage frais has less than half the ingredients of Petits Filous fromage frais" did not imply that their product was healthier.  They said ad (a) also implied the absence in their product of those ingredients that were used for technological reasons and not normally consumed as a food in themselves nor normally used as characteristic ingredients of food.  They claimed that the unique selling point of their product was its simplicity, and that the ads were about informed choice, offering parents an option that was simpler than Petits Filous and more akin to one that could be made at home.  Müller said at least four of Petits Filous' ingredients were present for technological purposes (modified maize starch, guar gum, locust bean gum and citric acid) and would not normally be consumed as a food in themselves or added as a characteristic ingredient.  They pointed out that they had produced a product for the same eating occasion and target market as Petits Filous without using such ingredients, and that the count would be higher still if any of the calcium salts were also being used for their additive as well as their fortification functions. They added that as fortification could lead to imbalances within the diet, there was a crucial role for simpler dairy foods with the dairy goodness of wholemilk, to be offered in the context of a balanced diet and healthy lifestyle.         

In response to Yoplait's comments that the nutritional value of each product was almost identical, that on key nutrients such as total fat, sugar and carbohydrates there was no significant difference, and that Little Stars had lower amounts of calcium and protein, no Vitamin D (recommended by the Department of Health as a dietary supplement for children from one to five years old, and from six months for breastfed babies) and a higher count of calories and saturated fat than did Petits Filous, Müller said it was inappropriate to selectively highlight differences on various nutrients.  They said food should be viewed in the context of the overall diet, individual needs and life stages to avoid imbalances in the diet.  They felt that most people should be able to get the calcium they needed by eating a varied and balanced diet that included dairy products such as theirs and additionally in the case of Vitamin D by exposure to sunlight.  They pointed out that weaning foods should be energy-dense as at that stage in life energy requirements were relatively high compared with size and only small quantities of food could be consumed at a time. They maintained that for a product that was not classified as high in fat, sugar, or salt, the saturated fat content was irrelevant as when taken in the context of guideline daily amounts the difference was nutritionally inconsequential, and added that the FSA included whole milk products amongst the first foods to try for weaning children.  They said in their view, their product had a high natural nutritional value, directly linked to its whole milk content, was nutrient dense, and the addition of vitamins and minerals was not necessary.  They said that would appeal to many parents who chose their product for its simplicity.  

Müller said ad (c) contained no false statements or claims; their product contained seven ingredients or fewer and no E numbers, and Petits Filous contained up to 15.  They claimed that, on viewing the ad, the average consumer who was reasonably observant, well-informed and circumspect would not see a comparison of product healthiness or a comment on the healthiness of additives, but merely the stated attributes.  They maintained that the advertising message was so simple that it was not likely to deceive those who saw it or affect their economic behaviour as a consequence, and commented that the call to action "next time you're shopping check the labels and see for yourselves" acted as an additional safeguard to ensure informed economic behaviour, thereby avoiding unfair injury to Yoplait.

Müller pointed out that food choices were not made solely for their nutritional characteristics, and gave examples such as food miles, organic, gm, vegetarian, halal and kosher.   They said it was not therefore a given that any food claim must imply something about nutrition.  They said some parents might consider additives to be generally safe, but nevertheless undesirable for infants and younger children and therefore choose to minimise or eliminate them from the diet.  They said Food Regulations controlled the use of additives by setting maximum levels permitted in specific food categories and took into account the Acceptable Daily Intake (ADI).  They added that although they considered additives to be safe, parents weaning children might be anxious due to recent scares.  They pointed out that Glanbia who manufactured Petits Filous in Ireland were also marketing to consumers who wanted natural, fewer ingredient alternatives, with their "100% natural" product.  

Clearcast endorsed Müller's comments on ad (c).  They said, whenever an ad featured a named comparison, they took great care to ensure that there was no likelihood of viewers being misled.  They argued that the question and answer in the ad were both pure statements of fact: one product contained more ingredients than the other and one product contained E-numbers while the other contained 100% natural ingredients.  Clearcast considered that no unjustified conclusion could be drawn from those statements, and that there was no implication that one was healthier than the other.  They added that the ad contained a direction to check the labels so the message was one of informing consumers about their choice: either choose a product that is fortified with vitamin D and calcium or choose one with 100% natural ingredients.

2. & 6.  In addition to their remarks on points 1 and 5, Müller disagreed that the ads portrayed Petits Filous in a negative light; they said they merely cited information that was already in the public domain.  They believed reiteration of public information could not be denigratory.  They claimed that in ad (a) the contrast of the pencilled "15" next to the Petits Filous sign with the cross-stitched "7" next to the Müller Little Stars sign was to give "stand out" to their product and underline the textual message that Little Stars had less than half the ingredients of Petits Filous.  They said they considered the creative treatment of the "cross-stitch" to be appropriate in their own case, and they used "neutral" imagery for Petits Filous specifically to avoid both confusion about who the advertiser was and the risk of denigration.      

They said the factual claims did not discredit or unfairly attack Yoplait's product.  Müller said ads that contained comparisons with other advertisers or other products were permissible in the interests of vigorous competition and public information.  They said such comparisons by their nature invited consumers to make a choice, based on the differences, on which product best suited their needs and preferences.  They said scrutiny of their labels by parents would show that they consisted of a handful of simple ingredients, had a refreshing absence of obscure ingredients and additives (particularly artificial colours and preservatives), and did not use multiple types of added sugar in a single product.  They said those were differences they believed they could legitimately highlight.  Müller highlighted a previous ASA adjudication in which the listing of artificial additives was not considered likely to imply that they were harmful.

Clearcast endorsed Müller's comments on ad (c).  In addition to their remarks on point 5, they said whenever an ad featured a named comparison they were careful to ensure that the comparator was not denigrated.  They said they worked very closely with the advertiser and agency to produce a straight like-for-like comparison which was both fair and genuine and from which no unjustified conclusions could be drawn.  They said they advised the advertiser that emotive language was not appropriate and eventually accepted the line that was broadcast.   

3. Müller argued that the ad was as faithful as possible to the ingredients list for each product whilst recognising that the 15 and 7 shapes would give rise to limitations, as would the number of alphabetic characters in each ingredient name.  They said, while that had resulted in Aronia being displayed in large text, it also applied to Carrot juice in their own case.  They explained that both ingredients represented a small percentage of the total product, and were present for a similar purpose.  Müller pointed out that Yoplait had referred specifically to Aronia in their complaint, but not to the similarly large text "Vitamin D" or "Juice", juice being juxtaposed to "Elderberry" which had a similar role to Aronia juice.  They added that Aronia was a berry and would be seen as a value ingredient and they were therefore puzzled by that complaint. Müller maintained that consumers would understand that the number of characters in an ingredient name would not correlate to the amount of an ingredient in a recipe, and that they would appreciate that ingredients "squeezed" into a 15 or 7 shape was a creative treatment communicating simplicity and not a comment on the relative proportions of ingredients.  In relation to Yoplait's point that "Sugar" was displayed in larger text, while both products contained very similar levels of sugar, Müller said the previous considerations applied, and added that the text height was only slightly less in the "7" than in the "15" shape.  They pointed out that, although irrelevant, Petits Filous contained 7% more sugar.

4. Müller said the full claim "With just 6 natural ingredients you could make it yourself" was not misleading, and that the word "just" should be considered in the context of the claim, where it meant "barely" or "merely", and indicated that the ingredients were in the order of six.  They argued, therefore, that the fact that certain varieties contained seven ingredients did not undermine the claim.  They said the number six also reflected the six key ingredients common to each variety of Little Stars: Fromage Frais, Water, Sugar, Fruit Puree, Cornflour and Natural Flavourings. They said their peach variety contained only those six ingredients.  Müller said their other varieties contained seven ingredients, because Carrot or Beetroot juice was added so that the products retained an appealing colour throughout their shelf life.  They added that the production of all varieties required the addition of a small amount of water, which would be unlikely to be added if made at home, and therefore all of the varieties could be made at home from six ingredients: Fromage Frais, Sugar, Fruit Puree, Cornflour, Carrot or beetroot juice, and Natural Flavourings.  They maintained that the low ingredient count, rather than the exact ingredient count, was the message the consumer would take away.  

7. In addition to the points made in 1 and 6, Müller argued that they merely stated the absence of E numbers in their product, in a factual manner, which did not imply that they were harmful or unhealthy.  In response to Yoplait's point that certain E numbers could make products more nutritious, such as calcium citrate and calcium phosphate used in fromage frais, Müller said they were not aware whether those E numbers were present as additives, as no additive function was stated on the packaging, and assumed they were present for fortification as EC regulations permitted that.  Müller said calcium phosphates and other additives could be used only at restricted levels in desserts, and those limits were set to ensure safe usage.  

They said the three stabilisers, modified maize starch, guar gum and locust bean gum, and the acidity regulator, citric acid, were E numbers and would not make the product more nutritious.  They said if a food additive had an E number that showed it had passed safety tests and been approved for use throughout the European Union.  They said, while the E number was an assurance of safety, many consumers, especially parents, lacked confidence in the evaluation processes for various reasons: the fact that additive manufacturers conducted the testing themselves, testing was on animals not humans, chronic and subtle effects of prolonged use were not tested for, synergistic effects of "cocktails" of additives in products were not tested for, and the fact that behavioural effects were not tested for.  Müller said it was recognised that parents could encounter difficulties in determining which additives to avoid, and as a consequence organisations such as the Hyperactive Children's Support Group offered shopping and label tips to parents on making an informed choice: avoid ingredients your mother would not recognise as a store cupboard item, if the product has a very large number of ingredients avoid it, use brands with stricter additive policies and stick with your trusted products.    

Clearcast said whenever they cleared ads that made reference to E numbers they were very careful to direct agencies and advertisers to their own Notes of Guidance which stated that there should be no suggestion that they were harmful.  They believed, with the removal of any emotive language surrounding the E numbers, they had ensured that only a statement of fact was given, from which no unwarranted implication could be drawn.

Assessment

1. Upheld

The ASA noted Müller's argument that the ad was not about the relative healthiness of the two products but, rather, focused on the simplicity of Little Stars.  We also noted they believed that was an important selling point, given that the intended market for both products was parents of young children.  

Although we acknowledged Muller were entitled to list the ingredients in each product, which was publicly available information, we disagreed that the presentation of that information merely implied that their product was simpler.  We noted the instruction in the ad to check the labels, but considered that many readers would see the difference in style in the depiction of the ingredients of the two products, with the grey figure 15 contrasted with the coloured, embroidered number 7, as significant.  We considered that the composition and style of the ad could give the impression to readers that the two products were different in terms of healthiness as a result of the difference in the number of ingredients.  We considered, furthermore, that ingredients that readers might not recognise, such as Aronia, and ingredients they were likely to see as less desirable, such as sugar, were prominent within the 15 figure because they were in relatively large type or in white.  

We noted Yoplait believed the two products to be almost identical nutritionally but that Petits Filous was superior because it contained more calcium, vitamin D and protein, and less saturated fat and calories.  We also noted Müller's comments about the nutritional desirability of a whole milk product and that Little Stars was a simpler product made from ingredients recognisable from the home.  We considered that any assessment of the "healthiness" of the two products would depend on the criteria used - some readers might value the fewer ingredients in Little Stars over, for example, the fortification of Petits Filous with calcium and vitamin D and vice versa.

We concluded that the ad misleadingly implied Little Stars were healthier than Petits Filous.

On this point, ad (a) breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1, 18.3 (Comparisons with identified products and/or their products) .

2. Upheld

We noted the Petits Filous 15 was grey in colour and had shading on the side of the figure 1 adding to the impression that the 15 was made of a hard, reflective surface such as metal.  We noted the Little Stars 7 was depicted in pastel colours in an embroidered style and was surrounded by a tree, grass and flowers.  We considered that that gave a more favourable impression of their product.  We also noted ingredients in each list were given differing prominence; for example, an ingredient that would be seen as less desirable, sugar, appeared in smaller text and sideways in the Little Stars list whereas in the Petits Filous list it was in large text and the right way up.  We considered that the contrast in the presentation of the two lists gave the impression that Petits Filous was an unhealthy choice and portrayed it in a negative way.  We concluded that the ad was denigratory.  

On this point, ad (a) breached CAP Code clauses 18.1, 18.3 (Comparisons with identified products and/or their products) and 20.1 (Denigration and unfair advantage).

3.  Upheld

We noted a pot of Petits Filous contained 7.4 g of sugar and a pot of Little Stars contained 7 g, making it respectively the second and third highest ingredient.  We noted "sugar" appeared in large text in the 15 but in smaller, sideways text in 7.  We considered that consumers might well understand from that that sugar was present in significantly larger quantities in Petits Filous than in Little Stars.  We also noted fromage frais, the main ingredient in both products, appeared in blue text that was relatively small in the 15, whereas in the 7 it was in bright yellow text that, although sideways, was relatively bold and prominent.  

We noted Yoplait believed that "Aronia" was given undue emphasis in their product's list and it was not made sufficiently clear that the full ingredient name was "concentrated Aronia juice" They believed it was being likened to the similar-sounding word "Ammonia".  We noted Aronia juice was the ninth highest ingredient in Petits Filous but the word "Aronia" appeared in the largest text in the 15 figure.  We considered that "Aronia" and "Sugar" were given additional prominence by their white colour, along with the word "Acid" from "Citric Acid", which also appeared in larger type.  We considered that consumers would not be familiar with the name Aronia and would not necessarily know that it was a berry rather than an artificial substance.  We also considered that the word "juice" would not make that clear, because it was smaller and read sideways.  We noted "Vitamin D" and "Elderberry Juice" appeared in dark text that was considerably less noticeable than Aronia.  We noted "Carrot Juice" in the Little Stars list, by contrast, gave both words equal prominence and would be easily recognised as a natural ingredient.  

We considered that ad (a) emphasised ingredients in Petits Filous that would not be seen as desirable by consumers, and gave prominence to ingredients in the Little Stars list that appeared in similar quantities in Petits Filous.  We concluded that the comparison was likely to mislead.

On this point, ad (a) breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness), 18.1, 18.3 (Comparisons with identified products and/or their products).

4. Upheld

We noted the ad depicted a six-pot pack of Little Stars which contained two pots each of the strawberry, raspberry and peach flavours.  We also noted the strawberry and raspberry varieties contained seven ingredients and the peach variety, six.  We noted, furthermore, the ad did not state that the six ingredients referred only to the peach variety.  We noted the claim "natural" had not been challenged and we had not come to a view on whether the ingredients were "natural" or not.  We considered that the claim "with just 6 natural ingredients you could make it yourself" would be seen to refer to the ingredients found in any of the pictured Little Stars range, rather than to one particular variety, to the base ingredients without colouring or to the ingredients one would use to recreate the recipes at home.  We concluded that the claim was misleading.

On this point, ad (b) breached CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness).

5. Not upheld

We noted Müller believed viewers would not make a judgement from the ad about the healthiness of the products because the comparison between the numbers of ingredients was merely a statement of fact.  We also noted the only other comment made on the product was the absence of E numbers.  We considered that Müller were entitled to point out in their ads what they perceived to be the benefits of their product, such as the smaller number of ingredients.  We also considered that the information was presented in a factual and unemotive style, and viewers would be unlikely to make an inference about the relative nutritional benefits of each product.  We concluded that the ad was not misleading.

We investigated ad (c) under CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising), 5.2.1 (Evidence), 5.2.2 (Implications), 5.4.6 (Comparative advertising) and 8.3.1(a) (Accuracy in Food Advertising) but did not find it  in breach.

6. Not upheld

We noted the ad focused on a mother giving information to other mothers of young children and depicted those children eating fromage frais supervised by their mothers. We considered that the claim "next time you're shopping, check the labels and see for yourselves" invited parents to make a choice based on the information on the product labels, but did not go beyond a fair comparison between the number of ingredients and the presence of E numbers.  We concluded that the ad did not denigrate Petits Filous.

On this point, we investigated ad (c) under CAP (Broadcast) TV Advertising Standards Code rules 5.4.3 (Denigration) and 5.4.6 (Comparative advertising) but did not find it in breach.

7. Not upheld

We noted the ad mentioned the number of ingredients in each product and that Little Stars contained no E numbers.  We understood that additives that had been assessed for safety and approved for use within the European Union were prefixed with an E, and that they could be classed as natural or artificial.  We noted Müller's argument that the ad merely stated the absence of E numbers in their product to facilitate informed choice.  We considered that viewers would understand that Müller were highlighting a perceived benefit of their product and would not infer that E numbers should be avoided.  We concluded that the ad did not imply that E number ingredients were inherently harmful or unhealthy to consumers.

On this point, we investigated ad (c) under CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising), 5.2.1 (Evidence), 5.2.2 (Implications), 5.4.6 (Comparative advertising) and 8.3.1(a) (Accuracy in Food Advertising) but did not find it in breach.

Action

On points 1-3, ad (a) must not appear again in its current form. On point 4, ad (b) must not appear again in its current form. On points 5-7, no further action was necessary.

Adjudication of the ASA Council (Broadcast)

Adjudication of the ASA Council (Non-broadcast)