ASA Adjudication on United Biscuits (UK) Ltd
United Biscuits (UK) Ltd t/a
Hayes End Road
15 October 2008
Food and drink
Number of complaints:
A TV ad for McVitie's Jaffa Cakes, which was broadcast from February to May 2008, showed a woman sitting at a table in a garden. A second woman came out of the house to join her and said "Sorry about that. Michelle keeps ringing saying she's trapped down a well." Her friend, who was eating a Jaffa Cake, said "Really?" A box of Jaffa Cakes was on the table. The other woman reassured her "Don't worry, she's always lying. Attention thing." She started eating a Jaffa Cake and continued "Last week she said there was only one gram of fat in a McVitie's Jaffa Cake." Her friend started to smile and said "One gram of fat?" Both women started to laugh; one of them pretended to be 'Michelle' and said "Oh help, I've fallen down a well" in a mocking tone. A male voice-over stated "Michelle isn't lying. Each delicious McVitie's Jaffa Cake really does have only one gram of fat." The women were now laughing raucously. The ad then showed a well in the countryside; a voice from inside shouted "Help!" The ad ended with a shot of a box of McVitie's Jaffa Cakes; the voice-over continued "McVitie's Jaffa Cakes, unbelievably delicious and now even more orangey."
1. Two viewers thought the ad was misleading, because it implied Jaffa Cakes were a healthy snack by focussing on the amount of fat in one small and lightweight cake, while ignoring the percentage of fat in the product.
2. The ASA challenged whether the claim "only one gram of fat" misleadingly suggested Jaffa Cakes were low in fat.
BCAP TV Code
1. McVitie's said that the primary message of the ad was that Jaffa Cakes were a delicious treat and that each cake contained one gram of fat. They said this was a factual and accurate statement of which many, but not all, consumers were aware. They said the ad conveyed a clear and helpful message to consumers who were looking to control their fat intake and would not have confused or misled viewers about the fat content of a Jaffa cake.
McVitie's pointed out that they had not received any complaints from consumers raising the same concerns. They said that consideration had been given to communicating the fat content of a Jaffa cake in terms of a percentage figure, which was 8%, instead of weight but they decided against this because they considered it would be difficult for consumers to work out how many grams this represented. They added that a Jaffa cake contained considerably less fat than chocolate digestives, which contained four grams of fat.
Clearcast said that McVitie's provided them with evidence that a Jaffa cake contained one gram of fat, which they believed supported the claim made in the ad. They considered this claim was acceptable because the product had the distinct advantage over slab cake of offering the consumer an individual cake, hence consumers would know they were eating only one gram of fat. They said the women's reaction to the news that a Jaffa Cake contained only one gram of fat served to highlight to consumers that this fact might well be surprising. They considered the ad was not misleading.
2. McVitie's did not believe the claim "only one gram of fat" was likely to be seen by viewers as having the same meaning as 'LOW FAT' or 'low in fat'. They told us they had not received any complaints or concerns about the claim in the ad.
Furthermore, they said the claim "only one gram of fat" had appeared on packaging and in advertising since 2004 and that the original version of the ad, which made the same claim, was produced in January 2006 and approved by Clearcast in February 2006. That was all prior to the date the Regulation applied, 1 July 2007, and the date of publication of the Food Standards Agency (FSA)'s Guidance to Compliance with the Regulation in April 2008. They pointed to a transitional provision in the Regulation that permitted the making until January 2010 of nutrition claims that had been used prior to 1 January 2006 in compliance with national provisions and that were not included in the Annex. On the basis that they did not accept that the claim "only one gram of fat" was likely to have the same meaning for the consumer as 'low fat', they took the view that the claim was not included in the Annex and therefore its use was permitted by the transitional provision.
Clearcast considered McVitie's were entitled to make the claim that a single Jaffa Cake contained one gram of fat. Clearcast concluded that no one would be misled by the claim. The current ad had been cleared for broadcast on 30 January 2008.
1. Not upheld
The ASA noted the viewers thought the ad gave the misleading impression that Jaffa Cakes were a healthy snack because it focussed on the amount of fat in one cake while ignoring the percentage of fat in the product. We also noted McVitie's and Clearcast's view that the claim that a Jaffa cake contained "only one gram of fat" was accurate and that this information was meaningful to consumers.
We understood that Jaffa Cakes were classed as an HFSS (high in fat, sugar or salt) product and we therefore considered that they could not be described as a healthy snack. We considered, however, that the ad did not give this impression.
We noted that the ad did not focus on the salt or sugar content of a single Jaffa Cake but only the fat content. We also noted that the fat content was stated in terms of its weight in one single cake rather than as a percentage. We considered this could be meaningful to some viewers and concluded that stating the amount of fat in one cake instead of stating the percentage of fat did not in itself suggest that Jaffa Cakes were, overall, a healthy snack. We noted that no 'healthy' claims were made and concluded that the ad was not misleading in that respect.
On this point, we investigated the ad under CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising), 5.2.2 (Implications) and 8.3.1a (Accuracy in food advertising) but did not find it in breach.
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 nutrients or other substances it contained in reduced proportions. We considered the claim "only one gram of fat" met that definition and was therefore a nutrition claim.
We considered the ads message was that the amount of fat in a Jaffa Cake was much less than expected. Particularly in light of that context, we considered the claim "only one gram of fat" was likely to suggest to viewers that a Jaffa Cake was low in fat: it was therefore a 'low fat' claim.
We noted the Regulation stated that nutrition claims listed in the Annex were permitted only if they conformed to the conditions set out for them in the Regulation. One of the nutrition claims listed in the Annex was 'low fat' and the FSAs Guidance stated that if information was presented in a way that implied it was beneficial to consumers, such as "contains only 10 g of fat", it would need to comply with the Regulation; we considered that example was very similar to the one made in the ad. We did not accept McVities argument that the transitional provision applied, because the claim was of a type (low fat) listed in the Annex. One of the conditions set out in the Regulation was that low fat claims should not be made for products with more than 3 g of fat per 100 g for solids.
We noted Jaffa Cakes contained 8 g of fat per 100 g for solids.
We concluded that the claim "only one gram of fat" misleadingly suggested that Jaffa Cakes were low in fat.
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).
The ad must not be broadcast again in its current form.
Adjudication of the ASA Council (Broadcast)