ASA Adjudication on Nestlé UK Ltd

Ad

A TV ad for Nestle Kit Kat showed Father Christmas (from the TV animation film, Father Christmas), landing his sleigh next to his house in the snow. He went into the house and rubbed his large stomach. On-screen text stated “May aid weight control within balanced, calorie controlled diet”. Father Christmas said “TOO MANY BLOOMING MINCE PIES THIS YEAR ME LAD, THOSE LAST FEW CHIMNEYS WERE A BIT OF A SQUEEZE”. He was then shown looking at a Kit Kat and said: “OH LET'S SEE NOW 107 CALORIES JUST THE TICKET. MMMMM LOVELY AH WE'LL THAT'S IT FOR ANOTHER BLOOMING YEAR”.

Issue

1. One viewer objected that the reference to 107 calories implied a Kit Kat was a healthy snack, whereas they believed the biscuit was high in fat and sugar.

2. Another viewer objected that the ad was targeting children through the use of Father Christmas, which they believed was a breach of the rules on foods with a high fat, sugar and salt (HFSS) content.

BCAP TV Code

BCAP TV Scheduling Code

Response

1. Nestle UK Ltd (Nestle) said that Father Christmas's statement that a two-finger Kit Kat contained 107 calories was not a claim that Kit Kat was a low calorie snack or was low in fat or sugar, but a statement of fact about the number of calories in a Kit Kat. They said it was designed to help consumers make a more informed choice about the treats they might consume. They said the claim did not state "only 107 calories" and believed there was no implication the product was low calorie. They did not believe the ad made any nutrition or health claims and believed the claims complied with the Nutrition and Health Regulation.

They explained that, in the ad, Father Christmas had just finished making the final delivery for Christmas, which was the biggest task of his year and would involve descending down millions of chimneys to deliver presents. Following the completion of his tasks, he rewarded himself with a Kit Kat as a treat. They said, in that context, Nestl communicated that the two-finger Kit Kat, which was a relatively small product, was a portion controlled treat to be consumed as part of a healthy balanced diet. They said the on-screen text, "May aid weight control within balanced, calorie controlled diet", which Clearcast had required, reinforced the message of weight control as part of a healthy balanced diet. They said nutritionists accepted that a varied balanced diet could include a variety of treats in moderation, and the ad emphasised that a two-finger Kit Kat was less calorific than the mince pies Father Christmas had been consuming, which were, on average, around 260 calories each.

Nestle believed the two-finger Kit Kat fell within the recommendation from the Food Standards Agency on portion size, because it weighed 21 g and the ad encouraged a preference for this smaller portion. They said being an HFSS product did not make the two-finger Kit Kat a "bad product". They said Nestle stated on-pack "Enjoying chocolate as part of a varied, balanced diet and lifestyle is one of life's little pleasures".

Clearcast said the ad had been seasonally on air since 2006. They said, when the new rules concerning the advertisement of HFSS foods came into effect in 2007, the script had been reconsidered. They said they had concluded that the ad was not targeting pre-school or primary school aged children by the nature of its message, which they believed concerned weight loss as Father Christmas spoke about eating too many mince pies and then chose a lighter Kit Kat option instead. For that reason, however, they had specified that text stating "May aid weight control within balanced, calorie controlled diet" should appear on-screen. They said, in light of the HFSS rules, the ad had a timing restriction which meant it could not be transmitted in or adjacent to children's programmes or programmes commissioned for, principally directed at or likely to appeal particularly to audiences below the age of 18 years. Clearcast said, following a recent previous ASA Adjudication, they had required the removal of the word "only" from the claim "107 calories" to conform to that ruling and, without the word "only", they did not believe a low energy claim was being made, as defined under the Regulation. They said the two-finger Kit Kat was clearly set out as a treat for Father Christmas in this context. They believed every precaution had been taken to comply with the Code.

2. Nestle said the ad campaign was not directed at children but set out to advertise to the adult market who were the main consumers of Kit Kat products. They said they had measures in place to ensure that where any HFSS products were identified in their portfolio, they would not buy TV media space against programmes where the audience exceeded 50% of 16-year-olds. They said, for the Father Christmas ad, they had bought media time with a restriction to avoid under 18s. They said the character of Father Christmas was the embodiment of Christmas and was used to give a seasonal flavour to the advertisement. They said other companies had also used representations of Father Christmas to advertise HFSS foods. They said the content of the Kit Kat ad was clearly of an adult nature and believed the concept of calories would hold very little appeal for children. They said adults would also be able to identify with Father Christmas in relation to the effort involved in organising Christmas. They believed the message of having a cup of tea, sitting down with a sigh and taking the weight off ones feet was adult orientated and was not something that children in general would tend to empathise with.

Assessment

1. Upheld

The ASA noted the Regulation defined any claim which stated, suggested or implied that a food had particular beneficial nutritional properties because of the energy (calorific value) it provided at a reduced rate as a nutritional claim. Nutrition claims were permitted only if they were listed in the Annex and conformed to the conditions set out for them in the Regulation. One of the nutrition claims listed in the Annex was "a claim that a food was low in energy and any claim likely to have the same meaning for the consumer". One of the conditions set out in the Regulation was that "low energy" claims should not be made for products with more than 40 kcal (170 kJ)/100 g for solids. We understood that a two finger Kit Kat contained 510 kcal per 100 g.

We noted the ad compared a two-finger Kit Kat with mince pies and also noted the Regulation required comparative claims about foods, which might be permitted if the foods were in the same category, to state the difference in energy value for the same quantity of those foods. We noted the ad did not contain information pertaining to the relative energy values of two-finger Kit Kats and mince pies.

We concluded the claim "107 calories just the ticket", in the context of the ad as a whole, in which Father Christmas discussed having put on weight after eating too many mince pies, gave the misleading impression a two-finger Kit Kat was low in energy when that was not the case.

On this point the ad breached CAP (Broadcast) TV Advertising Standards Code rule 8.3.1(a).

2. Not upheld

We recognised that Father Christmas was a well-known and generally fondly regarded seasonal character for both children and adults. However, no children were depicted in the ad and Father Christmas was shown taking the weight off his feet with a cup of tea and a biscuit, which we considered to be principally an adult pleasure. We concluded that, given its theme and content, the ad was not targeted directly at pre-school or primary school children and was also unlikely to have particular appeal to, or influence over, under 18s, and concluded the ad was unlikely to target or appeal particularly to children in breach of the Code.

On this point we investigated the ad under CAP (Broadcast) TV Advertising Standards Code rules 7.2.4 (Children: use of licensed characters and celebrities), 8.3.1(c) (Nutritional claims), 8.4.1 (Slimming and weight control: people under 18), but did not find it in breach.

Action

The ad must not appear again in its current form.

Adjudication of the ASA Council (Broadcast)