ASA Adjudication on Mars UK Ltd

Ad

A TV ad, for Maltesers, showed two men and two women sitting on a sofa. The men were asleep while the women were watching TV. One woman, who was eating Maltesers, offered the bag to her friend and said "Want one?" As she took a Malteser, the friend said "Oh go on then, naughty". The woman replied "Less than 11 calories each"; on-screen text stated "per 2.1g sweet". The other woman looked a bit disappointed and said "Yeah? That's not very naughty". The two women then rearranged the sleeping men on the sofa so that they were cuddling and giggled as they watched the men snuggling up to each other. A voice-over stated "Maltesers. At less than 11 calories each, you'll need new ways to be naughty". The ad then showed Maltesers floating in the air and wearing haloes. On-screen text stated "Maltesers THE LIGHTER WAY TO ENJOY CHOCOLATE".

Issue

1. One viewer, a Food Safety & Standards Officer, challenged whether the claim "less than 11 calories each" misleadingly implied Maltesers were a low energy product.

2. The ASA challenged whether the claim "THE LIGHTER WAY TO ENJOY CHOCOLATE" misleadingly suggested Maltesers were lower in energy than other similar products.

BCAP TV Code

Response

Mars said they were satisfied that the ad's claims complied with the CAP (Broadcast) TV Advertising Standards Code and with the Regulation.

They stated that the TV ad was scheduled to be aired once every four weeks for the indefinite future.

1. Mars argued that, under the transitional provisions of the Regulation, it was permissible to continue to use nutrition claims not listed in the Regulations Annex until January 2010, providing the claim had been used prior to 1 January 2006.  They said the claim "less than (X) calories" was not listed in the Annex to the Regulation and such a claim had been used by at least one of their competitors before 1 January 2006.  They therefore argued that, even if the claim "less than 11 calories each" was held to be a nutrition claim, it could be used in accordance with the Regulation until January 2010.

Notwithstanding that, Mars believed the claim was not a low energy nutrition claim under the Regulation; they thought consumers would not interpret it as suggesting that the product had beneficial nutritional properties because of the energy it did or did not provide.  They stated that the claim had been used in TV ads without complaint since 3 February 2008.  They said it was intended to be a factual statement about the number of calories in each Malteser sweet, not to suggest that the product was low in energy.  They believed consumers were increasingly demanding more information about food products and the claim was designed to help viewers make more informed choices about the food they consumed.

They explained that the words "less than" were not intended to emphasize the low calorie value of Maltesers but instead to avoid misleading consumers about the calorie content.  Given that each individual Malteser could vary in size, the precise calorific value of each sweet could not be expressed with certainty.  Mars stated that a Malteser weighed 2.097 g on average, which equated to 10.59 calories.  However, because a Malteser could weigh more or less than that average, the claim "less than 11 calories each" indicated that the calorie information given was approximate, while accurately setting 11 calories as the maximum value.

Mars argued that it was more useful for viewers to be told the calorie value of each individual Malteser instead of the number of calories in the 175 g bag featured in the ad, because the bag was designed for consumers to share or eat in stages.

Clearcast said they did not consider the ad under the Regulation.  They received assurances from Mars that the factual claim about the number of calories in each Malteser was correct.  They believed stating calorie information did not suggest Maltesers were a low calorie or low energy product.  They argued that the claim "less than 11 calories each" merely gave product information and was not used in conjunction with any suggestion of weight loss or calorie control; in addition they felt the claim that each Malteser contained less than 11 calories did not suggest that, if eaten in greater quantities, the product was low in calories.

2. Mars said the claim "THE LIGHTER WAY TO ENJOY CHOCOLATE" was a strapline which had been used in various UK media including TV, radio, magazines and posters without complaint continuously since 1991.  They stated that the strapline was registered as a trade mark with the UK Intellectual Property Office in 1999 and submitted a copy of the registration.  Mars pointed out that, under the transitional provisions of the Regulation, products bearing trade marks or brand names existing before 1 January 2005 which did not comply with the Regulation could continue to be marketed until 19 January 2022, after which time the Regulation would apply.  They said the Food Standards Agency Guidance to Compliance with the Regulation confirmed that the transition period applied to the trade mark, not the product.  They argued that, because the strapline "THE LIGHTER WAY TO ENJOY CHOCOLATE" was a trade mark that had existed and had been used in association with Maltesers since well before January 2005, its use in advertising could not currently be in breach of the Regulation, even if it was held to be a nutrition claim.

Notwithstanding that, Mars believed the strapline did not fall within the Regulation's definition of a nutrition claim and would not be seen as a nutrition claim by consumers.  They said it had been used extensively, if not continuously, in advertising over the past 25 years to refer to the light, airy texture of the product.  They explained that the strapline first appeared in TV ads in 1983, with accompanying visuals such as birds and kites emphasizing the physical lightness of the product.  It was briefly replaced with "the light fantastic" and "light and fantastic" before being reintroduced in 1991 and had remained their core brand strapline ever since.  They pointed out that, over the past 25 years, the use of the strapline in TV ads had been accompanied by images that emphasized physical lightness, such as feathers, bubbles, individual Malteser sweets floating in the air and Maltesers being sucked or blown.  They also pointed out that the ad under investigation ended by combining the text "THE LIGHTER WAY TO ENJOY CHOCOLATE" with an image of Maltesers floating in the air and wearing haloes.  They said the Maltesers brand had always been presented as a light, playful treat that was associated with fun and spontaneous, shared moments.

Mars believed consumers were familiar with the words 'light' and 'lighter' being used to describe the physical lightness of some foods, for example, the word 'light' was frequently used to refer to the light texture of products such as sponge, shortcake and pastry.  They therefore believed consumers would interpret the phrase "THE LIGHTER WAY TO ENJOY CHOCOLATE" as referring to the airy, bubbly honeycomb centre of Maltesers.

Mars argued that the claim "THE LIGHTER WAY TO ENJOY CHOCOLATE" was neither a comparative nutrition claim nor a light nutrition claim and therefore did not suggest Maltesers were lower in energy than other similar products.  They asserted that "THE LIGHTER WAY TO ENJOY CHOCOLATE" was not making a 'light' claim in a nutritional sense and was comparative only in so far as it distinguished the texture of Maltesers from other products.

Clearcast said they fully endorsed Mars' response and reiterated Mars' argument that "THE LIGHTER WAY TO ENJOY CHOCOLATE" had been the Maltesers strapline for years.  They felt the claim did not suggest the product was low in calories but instead was a comment on the texture and lightness of Maltesers, a principle that was long established for the product.

Assessment

1. Upheld

The ASA noted the Regulation defined a nutrition claim as including 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.  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 'low energy'.  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 considered the claim "less than 11 calories each", particularly in an ad that emphasised Maltesers not being as "naughty" as one woman had supposed, was likely to suggest to viewers that a Malteser was low in calories; we therefore considered it was a 'low energy' claim.  We understood that, because Maltesers contained 505 calories per 100 g, a 'low energy' claim should not have been made.

We took legal advice and understood that the transitional provisions of the Regulation did not apply, because the claim "less than 11 calories each" did fall within the Annex.  The Annex gave definitions of claims, not specific examples of them, and we considered that the claim "less than 11 calories each" fell under the 'low energy' definition.  Furthermore, we noted the specific claim "less than 11 calories each" had been in use by Mars only since February 2008.  We considered it was not the intention of the transitional provisions to allow a claim that would otherwise be in breach of the Regulation to continue to be advertised merely because at least one marketer had previously made a similar claim.

We concluded that the words "less than" gave the misleading impression that a Malteser was low in energy.

On this point, the ad breached CAP (Broadcast) TV Advertising Standards Code rules 1.1 (Complying with the law), 5.1 (Misleading advertising), 5.2.2 (Implications) and 8.3.1a (Accuracy in food advertising).

2. Not upheld

We noted Mars' argument that the strapline "THE LIGHTER WAY TO ENJOY CHOCOLATE" was a trade mark that had been in use since before January 2005 and therefore its use in advertising could not currently be in breach of the Regulation.

We considered that many consumers would be familiar with the claim "THE LIGHTER WAY TO ENJOY CHOCOLATE" as a strapline to ads for Maltesers.  We noted the strapline had existed for 25 years and had been used extensively in advertising in a way that associated it with the concept of floating in the air.  We also noted the ad under investigation showed Maltesers floating in the air at the same time as the on-screen text "THE LIGHTER WAY TO ENJOY CHOCOLATE" was visible.

We considered the claim "THE LIGHTER WAY TO ENJOY CHOCOLATE" was unlikely to be seen as a nutrition or energy comparison with other chocolates or as suggesting that Maltesers had beneficial nutritional properties.  We concluded that viewers were likely to interpret the claim, in the context of the ad, as referring to the weight, size and texture of a Malteser and were unlikely to see it as referring to the low energy content of Maltesers compared to other similar products.  We made no finding on the application of the transitional provision to the strapline.

On this point, we investigated the ad under CAP (Broadcast) TV Advertising Standards Code rules 1.1 (Complying with the law), 5.1 (Misleading advertising), 5.2.2 (Implications), 5.4.6 (Comparative advertising) and 8.3.1a (Accuracy in food advertising) but did not find it in breach.

Action

The ad must not be broadcast again in its current form.

Adjudication of the ASA Council (Broadcast)