ASA Adjudications

Nestle UK Ltd
York
North Yorkshire
YO91 1XY
Nepali TV
Nepali TV Ltd
Westec House
Westgate
Ealing
London
W5 1YY
Date:22 October 2008
Media:Television
Sector:Food and drink

Background
In July 2007 Regulation (EC) No 1924/2006 on nutrition and health claims made on foods (the Regulation). The Regulation defines a nutrition claim as any claim which states, suggests or implies that a food has particular beneficial nutritional properties due to the presence of a particular nutrient or other substance.  The Regulation defines a health claim as any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health.

Ad
An ad in Bengali, for Maggi Noodles with protein and calcium, was broadcast on Nepali TV in the UK.  The voice-over said "What are we eating?" while the ad showed children playing tug-of-war outside.  One of the children rubbed his stomach and said "Haaa".  He ran inside to see his mother and said "Mummy!  Maggi!"  She replied "Just 2 minutes".  The ad showed the noodles being cooked with vegetables.  The mother explained "Maggi is the best because it has essential protein and calcium that help to build strong muscles and bones.  Indeed, there is no comparison to Maggi noodles.  Amazing taste!  Amazing nutrition!"  On-screen inset graphics showed an arm with a yellow glow over the bicep and a knee with a yellow glow over the kneecap.  The ad ended with a pack shot of the noodles and two children eating.
Issue
Monitoring staff challenged whether Nepali TV held evidence to substantiate the claim that the protein and calcium in Maggi Noodles made children's muscles and bones strong.
BCAP TV Advertising Code: 5.1;5.2.1;8.3.1(a);1.1

Response
Nepali TV did not comment but eventually withdrew the ad.

Nestle explained that the ad had been broadcast on Nepali TV without their knowledge or consent possibly as part of a re-broadcast deal organised by Nepali TV with NTV in Bangladesh.  Nestle said the ad had been approved for broadcast and complied with the necessary legal requirements in Bangladesh.  They explained that Maggi Noodles with protein and calcium provided 20% of the recommended daily allowance (RDA) for those nutrients as set out by the 1974 Food and Agriculture Organisation of the United Nations (FAO) and the World Health Organisation (WHO) recommendations, which are the reference values recognised by the Bangladesh Government.
Assessment
Upheld
The ASA noted Nepali TV held an Ofcom licence and was required by the conditions of that licence to comply with the CAP (Broadcast) TV Advertising Standards Code.  The Introduction to the Code states "This Code applies to all the Ofcom licensees ... [including] satellite television services provided by broadcasters within UK jurisdiction (whether or not their main audience is in the UK)."  

We were concerned that Nepali TV was broadcasting ads without the advertiser's consent.  We understood that Nepali TV was obliged, as part of its Ofcom licence obligations, to ensure that those involved in providing the licensed service complied with the provisions of the licence and all relevant codes and guidance and that they had enough persons involved in providing the service who were adequately versed in the requirements of the licence to ensure compliance with those requirements on a day-to-day basis.  We noted Nepali TV had not been able to submit a translation of the ad, had not explained why they thought the ad was acceptable and had not submitted evidence to substantiate the claims.  

We considered that the claim "Maggi is the best because it has essential protein and calcium that help to build strong muscles and bones" was both a health claim that referred to childrens development and health as defined by the Regulation and a nutrition claim.  We noted the requirement under the Regulation to pre-authorise risk reduction claims and claims that refer to childrens development and health.  We also noted the ad had been shown in the EU without Nestles knowledge or consent and they were not responsible for any failure to comply with the Regulation.  We acknowledged that Nestle would not have applied for permission to use the claim under the Transitional Provisions in the Nutrition and Health Claims Regulation or applied for pre-authorisation for the child development and health claim because they had not intended the ad to appear in the EU, where the requirements of the Regulation apply.  

We understood from the Food Standards Agency (FSA) that the Regulation stated that, for a product to make a nutrition claim for protein, the product must contain 12% of the energy value provided by protein.  We understood that Maggi Noodles contained only 10% of the energy value provided by protein in the product.  The FSA explained that proteins were essential constituents of all cells.  Protein must be provided in the diet for growth and repair of the body and any excess is used to provide energy.  The FSA explained that the link between intake of proteins and helping to make strong muscles was tenuous because the strengthening of muscles was a complex process and involved a degree of physical activity.  Protein is obviously required for children to grow.

We considered that, because we had seen no evidence that the protein in Maggi Noodles would "help to build strong muscles and bones" we considered that the ad was misleading and that Nepali TV should not have broadcast it.

We understood from the FSA that, for a product to make a nutrition claim for calcium, the product must contain 15% of the RDA for calcium for adults in a 100 gram serving.  Because we did not know how much calcium the noodles contained we were unable to establish whether the claim was justified.  We understood from the FSA that calciums main role in the body was to help keep bones strong.  The FSA explained that all but 1% of calcium found in the body occurred in bones and teeth.  The remaining calcium was essential for the contraction of muscles, nerve function, the activity of several enzymes and the normal clotting of the blood.  

Because we had seen no evidence that the calcium in Maggi Noodles would "help to build strong muscles and bones", we considered that the ad was misleading and that Nepali TV should not have broadcast it in the UK.

The ad breached CAP (Broadcast) TV Advertising Standards Code rules 1.1 (Complying with the law), 5.1 (Misleading advertising), 5.2.1 (Evidence) and 8.3.1 (a) (Accuracy in food advertising).
Action
The ad must not be broadcast again in its present form in the UK and the product should not be advertised without adequate substantiation for the claim made for it.

Adjudication of the ASA Council (Broadcast)

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