Background

Summary of Council decision:

Two issues were investigated, both of which were Upheld.

In February 2012, the ASA upheld complaints against marketing claims made on the website www.kidz5aday.com. We ruled that the advertiser had been unable to show that the Kidz 5 A Day product contained five portions of fruit or vegetables or that it was organic. We instructed Kidz 5 A Day to remove those claims.

At the time of the current complaints Kidz 5 A Day was listed on the ASA's website in the list of non-compliant advertisers, having continued to make those misleading claims despite repeated requests for changes from our Compliance teams.

Ad description

Two ads on Youtube:

a. The first ad appeared as a compulsory pre-rolled ad before another video, but was also available as a standalone video titled "my intermittent fasting secret tasty drink for my 2 days of fasting on the 5:2 diet". It showed a man talking in the style of a video diary. The video was digitally overlaid on an extract from the Health section of the BBC News website. The man said, "Those of you who have been following me will know that I've been doing a tonne of research on the intermittent fasting diet as made popular by Doctor Michael Mosley. I've been doing it for four weeks now and have found great success." He went on to say, "I just wanted to do a little video about one of the resources I've used to do that" and described how he had searched online for a nutritious drink that he could consume on fasting days. He said, "I found one and this drink is actually aimed at kids, it's called Kidz 5 a Day" and he showed a pack of the product. He said, "It's got 33 organic fresh fruits and vegetables in it but it's also mixed with some cocoa powder so that it tastes nice." He went on to describe how he used it on fasting days. As he continued to talk about the product the video frame in which he was speaking shrank slightly and moved to the bottom right of the screen. The rest of the screen was then taken up with the Kidz 5 A Day website and he continued to talk about the product, its calories, how to serve it, that it was on special offer and its ingredients. He said, "I don't know if anyone else is going to try that but if you do, certainly worthwhile. They've got a special on at the minute if I remember correctly. It's 30 quid for three months’ supply so it's a top bargain." He continued to extol its benefits until the end of the video. The poster of the video was named as "Neil Asher" and text in the information box below the video stated "You can get the stuff I'm using from their website - it's for kids who don't like to eat their veggies but as I say I've been using it as a meal replacement".

b. The second ad was titled "Intermittent fasting treat, tasty drink for 2 days of fasting on the 5:2 diet" and followed the same creative treatment as ad (a). The man spoke in the style of a video diary which was overlaid on the Health section of BBC News website. He explained that he had been doing the fasting diet and then said, "I just wanted to give you a little bit of a tip I've discovered recently; a friend of mine put me onto this and it's worked really really well." He then introduced Kidz 5 A Day and spoke about it at length. At one point he said, "… it's got 33 organic fruits and veg in it." Later he said, "I got myself a tub and I ordered it from a website", he then showed the Kidz 5 A Day website and confirmed the website address and showed the phone number. He said, "I gave these guys a call, spoke to the people in the office, they've been inundated with people ordering this for themselves, it's got out onto the internet, apparently it was on BBC ... this stuff is selling like hot cakes they told me." He then demonstrated how to prepare the product and extolled its virtues further. At the end of the video he recommended it again and said, "… and they're really cool people that sell it as well, really down to earth folks." The poster of the video was named as "Neil Asher" and text in the information box below the video stated "You can get the stuff I'm using from their website - it's for kids who don't like to eat their veggies but as I say I've been using it as a meal replacement".

Issue

1. Three complainants, who believed that the videos had been created and placed by Kidz 5 A Day challenged whether they were obviously identifiable as marketing communications.

2. The complainants also challenged whether the claim that the product contained 33 organic fruit and vegetables was misleading because they understood that the ASA had ruled against the use of that claim.

Response

Neil Asher said he had withdrawn the ads whilst he shot a new video that better represented his interest in the company selling the product.

Assessment

1. Upheld

The ASA noted that the videos had been posted under the YouTube profile name "Neil Asher" and we considered that the overall presentation of both videos: a man sitting in a house talking, seemingly unscripted, about his attempts to diet, was that of a video diary posted by an individual, rather than a company advertising a product. We considered that claims such as "I just wanted to do a little video about one of the resources I've used to do that" and "I found one and this drink is actually aimed at kids" in ad (a) and "I just wanted to give you a little bit of a tip I've discovered recently; a friend of mine put me onto this ..." and "I got myself a tub and I ordered it from a website" in ad (b) implied that the man in the video was simply a member of the public who had tried and was recommending the product as a private individual without any connection to the company.

We understood, however, that the videos had been placed by Neil Asher who was the owner of Kidz 5 A Day and we noted that both videos promoted the Kidz 5 A Day product. We considered that both videos were therefore marketing communications. The CAP Code required marketing communications to be obviously identifiable as such and that they must not falsely claim that that the marketer was acting as a consumer. However, we considered, for the reasons set out above, that the ads were not identifiable as marketing communications and therefore breached the Code.

On this point the ads breached CAP Code (Edition 12) rules  2.1 2.1 Marketing communications must be obviously identifiable as such.  and  2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context.  (Recognition of marketing communications).

2. Upheld

For the reasons given in point 1 above, we considered that the content of both ads was subject to the CAP Code (Edition 12) including those claims which related to the Kidz 5 A Day product. We noted, from the previous investigation, that the advertiser had not provided any evidence that the product contained any fresh fruit or vegetables or that it was organic and that we had consequently found those claims to be misleading.

In the absence of any new evidence to substantiate those claims we considered that the claim, in both ads, that Kidz 5 A Day contained 33 organic fresh fruits and vegetables remained unsubstantiated and was misleading.

On this point the ads breached CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.    3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 and  3.5 3.5 Marketing communications must not materially mislead by omitting the identity of the marketer.
Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections.
Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice.
 (Misleading advertising).

Action

The ads must not appear again in their current form. We told Neil Asher to ensure that his marketing communications were obviously identifiable as such and not to claim that Kidz 5 A Day was organic or contained fresh fruit and vegetables.

We told Neil Asher to comply with the original adjudication as well as this one and we referred the matter to CAP's Compliance team. We told Neil Asher to contact CAP's Copy Advice team before preparing non-broadcast marketing communications in future.

CAP Code (Edition 12)

2.1     2.3     3.1     3.3     3.5     3.7    


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