Summary of Council decision:
Three issues were investigated, of which two were Upheld and one was Not upheld.
A TV ad, a regional press ad and the website
www.nestlecereals.co.uk/battleofthebreakfasts, compared Nestle breakfast cereals with other breakfast options.
a. The TV ad compared the amount of calories, sugar, fat, saturated fat and salt in Nesquik cereal with the amount in jam on toast and directed viewers to the website for more information.
b. The regional press ad, headlined "HOW DOES YOUR BREAKFAST MATCH UP?", compared the amount of calories, sugar, fat, saturated fat and salt in Cheerios with the amount in a croissant and directed readers to the website for more information.
c. The website allowed users to select two breakfast foods from a number of options, including various Nestle cereals, and compared the "BREAKFAST STATS". Values were given for calories, sugar, fat, saturated fat and salt and the percentage of guide line daily amount (GDA) each represented.
1. One complainant challenged whether ad (a) was misleading because it did not state the quantity of Nesquik cereal or toast with jam upon which the comparison was based, and he did not believe the quantities were representative of typical serving sizes.
2. Another complainant challenged whether ad (b) was misleading because it did not state the quantity of Cheerios cereal or croissant upon which the comparison was based.
3. The third complainant challenged whether ad (c) was misleading because the comparisons, in particular the comparison between Cookie Crisp Cereal with milk and crumpets with margarine, were not based on typical serving sizes.
Cereal Partners UK (a partnership comprising Nestle UK Ltd and General Mills (UK) Ltd) said the purpose of the Battle of the Breakfasts campaign ("the Campaign") was to educate and inform consumers, encouraging them to think about their breakfast choices by providing nutrition facts on a range of foods that were typically eaten at breakfast. They said they had made a commitment to "support people to make informed, balanced choices that will help them lead healthier lives", as a signatory to the Department of Health's (DH) Responsibility Deal, and had met with their local Trading Standards Officer to help ensure the Campaign adhered to the spirit of responsible consumer communications.
They said the Campaign was intended to provide relevant, factual information regarding the calories, fat, saturated fat, sugar and salt in common breakfast foods, to enable consumers to make informed decisions about the breakfast food that suited their lifestyle and dietary needs. They did not accept that the ads in the Campaign made any "nutrition" or "comparative nutrition claims", as defined by EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation). They said they had taken care not to present an overall winner of the mock "battle" taking place between the foods featured in the TV and press ads and they reiterated that the information had been presented simply in all ads, without any creative content that implied a nutrition benefit of the featured foods. They did not want to imply that one choice offered overall better nutrition than another, and they pointed out that the cereal options did not always have lower values (for example, in relation to sugar) than the non-cereal options. They said they had read the DH guidance on the Regulation and had concluded that factual information about two breakfast choices, presented simply and without highlighting that any specific nutrition properties were "beneficial", did not constitute a nutrition or comparative nutrition claim.
1. Cereal Partners said the TV ad was intended to give viewers information on the nutrient content of typical servings of the foods compared. The ad showed a single bowl of cereal and a serving of two pieces of toast with jam, which they believed to be a standard serving. They acknowledged that the ad did not state the portion sizes, but they thought the images illustrated the portion sizes and that the ad clearly directed viewers to the website, where detailed information could be obtained. They said the European Breakfast Cereal Association (CEEREAL) had a harmonised set of portion sizes and that the recommended serving for cereal such as Nesquik was 30 g. The portion size for the toast and jam was taken from the publication "Food Portion Sizes", produced by the Food Standards Agency (FSA). They said the portion of toast and jam used in the Campaign was also consistent with that used by the European Breakfast Cereal Association in their 2008 paper, "Breakfast in Europe", and by a well-known bread manufacturer in relation to the wholegrain content of their breads. They pointed out that nutritionists recommended that 20–25% of daily energy requirements should be consumed at breakfast, which one slice of toast alone would not provide. They said they had also produced their own internal database of breakfast food information, relating to both portion size and nutrition information, which supported the information obtained from the FSA and from "McCance and Widdowson's Composition of Foods Integrated Dataset", which they said was recognised by the DH and others as the UK standard data set for food composition.
Clearcast said the ad was part of a campaign that aimed to present factual information about the nutrition value of the advertiser's range of breakfast cereals against a selection of other typical breakfast foods. They were satisfied that the nutrition information in the ad was based on portion sizes standardised under the guidelines set out by CEEREAL and the FSA; that the comparison was fair and representative of typical serving sizes for the foods; and that the visuals supported the message that typical serving sizes were being compared. They said they sought advice from a nutrition expert on whether the comparisons were fair and responsible. The expert was of the opinion that the comparisons were in line with the government’s and the EU's wish to make people more aware of the nutrient content of the food that they ate. They decided that the best way to make all nutrition information as clear and transparent as possible was to direct viewers to the battleofthebreakfasts.co.uk website, where they could find full nutrition details for each of the items featured, including portion sizes. They believed this was an established approach in ads that included comparisons, allowing viewers to verify complex information that may not be easily communicated in a 20- or 30-second ad.
2. Cereal Partners said the press ad highlighted two different breakfast foods and communicated key nutrition information relating to both in an unbiased way. This was presented in a list format that was consistent with manufacturers' front of pack GDA labelling and that consumers would be familiar with. They said the portion sizes upon which the nutrient values were based were representative of the average consumed, based upon their review of the FSA and CEEREAL guidance, and their own internal database. They felt that consumers would appreciate what a serving of both of the foods would be, based upon the visual representation of the bowl of cereal and the croissant. They recognised that they could add clarity by including portion sizes in future press ads, but pointed out that consumers were directed to the website for more detailed nutrition information, where they could also find information on portion sizes.
3. Cereal Partners believed that the nutrition information in the dropdown menus within the "Breakfast Stats" tab on the website had been presented in a balanced and factual manner. They said visitors to the website could compare any two breakfast foods from a range of more than 50 items and did not have to include one of their foods in the comparison. They reiterated that the portion sizes of the non-cereal options were representative of the average consumed. They said the website was central to allowing consumers to access relevant nutrition and portion size information, which was why all marketing communications relevant to the Campaign directed consumers to it.
The ASA noted that the ad began with various Nestle cereal characters and characters representing other foods walking towards the camera while on-screen text stated "BATTLE OF THE BREAKFASTS" and a voice-over, which was followed immediately by the ringing of a bell that sounded like those used to signify the beginning and end of a boxing match, said "It's the Battle of the Breakfasts brought to you by Nestle cereals". The voice-over then said, "Watch out, it's Big Jammy, jam on toast; and Nesquik Go Nicely. Here are the numbers" as the nutrient profile of both options was displayed in an on-screen graphic. Each row of the graphic was highlighted in turn as the voice-over said, "Calories, sugar, fat, sat fat, salt". The graphic showed that Nesquik had a lower value than the jam on toast in every category. The Nesquik and jam on toast characters then stood opposite each other before the Nesquik character began throwing pieces of cereal at the jam on toast character. The final scene showed the jam on toast character running away from the Nesquik character. For those reasons, we considered that the message of the ad was that Nesquik was of greater nutritional value than jam on toast, because it had a lower value in each of the nutrient categories, which had enabled it to be victorious in the "battle". We considered that the ad made comparative nutrition claims; namely, that Nesquik had particular beneficial nutritional properties by virtue of the reduced proportion of calories, sugar, fat, saturated fat and salt it contained compared to jam on toast.
The Regulation required that comparative nutrition claims compared the nutrients in the advertised product to a range of foods of the same category (which did not have a composition that allowed them to bear nutrition claims). One food could be used as the sole reference for comparison, provided it was representative of the foods in its category, and the comparison must be based on the same quantity of food. Furthermore, we noted that the Annex to the Regulation stated that "… a claim stating that the content in one or more nutrients has been reduced, and any claim likely to have the same meaning for the consumer, may only be made where the reduction in content is at least 30% compared to a similar food, except for ... sodium, or the equivalent value for salt, where a 25% difference shall be acceptable". Those criteria must be satisfied, but we considered that it was not necessary for the ad to state the quantities of the foods compared, provided the quantities were the same (the ad did not state the quantities of the foods, but it did include a prominent voice-over and on-screen text directing consumers to the website, where that information was available).
We noted that Cereal Partners had researched the nutrition information and portion sizes for all of the non-cereal options on the website, including the toast with jam featured in ad (a), and that the FSA’s "Food Portion Sizes" stated a weight of 27 g for one slice of toasted white sliced bread and 10 g and 15 g respectively for an average spreading of margarine and jam on one slice of bread. We understood that that was the portion of jam on toast upon which the nutrient profile in the ad was based (although the website erroneously stated the portion of jam was 20 g), and that the portion of Nesquik was 30 g with 125 ml of semi-skimmed milk. Based on those portions, Nesquik was shown in the ad to be lower than jam on toast by in excess of 30% in all nutrient categories. The total weight of the toast and jam was 104 g, compared with a 30 g serving of Nesquik cereal with milk, which had a total weight of 159 g. Although the comparison was not based on the same quantity of food, we noted that Nesquik with milk was even lower than jam on toast in each nutrient category if compared on a per 100 g basis. However, although cereal and jam on toast were both foods commonly associated with breakfast, we did not consider that they could be regarded as foods of the same category, or "similar foods", for the purposes of the Regulation (unlike, for example, a comparison of two different breakfast cereals).
Because we considered that the ad made comparative nutrition claims with a food that was not of the same category as Nesquik cereal, we concluded that the claims did not comply with the Regulation and were in breach of the Code.
On those points, ad a) breached BCAP Code rules 13.4.1,
Advertisements that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Advertisements must not give a misleading impression of the nutrition or health benefits of the product as a whole and factual nutrition statements should not imply a nutrition or health claim that cannot be supported. Claims must be presented clearly and without exaggeration
Comparative nutrition claims must compare the difference in the claimed nutrient to a range of foods of the same category which do not have the composition that allows them to bear a nutrition claim
The difference in the quantity of a nutrient or energy value must be stated in the advertisement and must relate to the same quantity of food.
The European Commission has produced guidance on food categories that advertising industry stakeholders might find useful:
http://ec.europa.eu/food/food/labellingnutrition/claims/guidance_claim_14-12-07.pdf (Food, food supplements and associated health or nutrition claims).
We noted that the heading "HOW DOES YOUR BREAKFAST MATCH UP?" appeared next to the nutrient profiles of Cheerios and a croissant, which showed that Cheerios had a lower value than the croissant for calories, fat, saturated fat and salt (but not for sugar). The ad included an image of a croissant character angrily biting the bowl that surrounded the Cheerios character, whose face and clenched fist suggested Cheerios had been victorious in the "battle". A graphic below that image included a tick and the words "Brought to you by Nestle Cereals" and text at the foot of the ad stated "GET MORE NUTRITION INFO at battleofthebreakfasts.co.uk". We considered that the ad implied that Cheerios was of greater nutritional value than a croissant, because of the number of nutrient categories in which it was lower, which had enabled it to be victorious in the "battle". We considered that the ad made comparative nutrition claims; namely, that Cheerios had particular beneficial nutritional properties by virtue of the reduced proportion of calories, fat, saturated fat and salt it contained compared to a croissant.
We noted that the FSA’s "Food Portion Sizes" stated a weight of 60 g for a plain croissant, and that Cereal Partners' research into portion sizes and nutrition information, which included nine croissants available from supermarkets and other food outlets, was broadly consistent with that. The ad compared the nutrient profile for a 60 g croissant with a 30 g serving of Cheerios (with 125 ml of semi-skimmed milk) and, on that basis, Cheerios was lower than the croissant by in excess of 30% in respect of fat and saturated fat (but not in respect of the other nutrients). The portion sizes of the two foods were not the same although, if compared per 100 g of each food, Cheerios with milk was lower than the croissant by in excess of 30% in every category except sugar, in which it was approximately 78% higher than the croissant. While a croissant was a food sometimes associated with breakfast, like cereal, we did not consider that the two could be regarded as foods of the same category or "similar foods", for the purposes of the Regulation.
Because we considered that the ad made comparative nutrition claims with a food that was not of the same category as Cheerios cereal, we concluded that the claims did not comply with the Regulation and were in breach of the Code.
On that point, ad b) breached CAP Code (Edition 12) rules 15.1, 15.1.1, 15.3 and 15.3.2 (Food, food supplements and associated health and nutrition claims).
3. Not upheld
We appreciated that the website provided the facility for consumers to see values for each nutrient along with the percentage of GDA (side-by-side) of two non-cereal breakfast options, two Nestle cereal options or a Nestle cereal option with a non-cereal option. The non-cereal options ranged from a cup of tea with milk, which was said to contain no more than 1% of GDA in any category, to a full English breakfast, which was said to contain 36% of GDA for calories, 12% of GDA for sugar, 60% of GDA for fat, 58% of GDA for saturated fat and 81% of GDA for salt. We considered that some consumers would look for a lower sugar breakfast option and others would be inclined towards options with lower fat, saturated fat, salt or calorie content. Other than the implication in the title of the website, "Battle of the Breakfasts" (i.e. that there would be a winner and a loser), we did not consider that there was anything about the way the nutrition information had been presented that suggested that the Nestle cereals had particular beneficial nutritional properties compared to the non-cereal breakfast options. We did not therefore consider that the Code rules that reflected the Regulation applied to the nutrition information on the website.
We understood the complainant was concerned that the serving of cereal was small and therefore gave a misleading impression of a food that was high in sugar; and that margarine had been added to the crumpets (which significantly increased the value of each nutrient). We recognised that the recommended serving of Cookie Crisp cereal was 30 g, in line with guidance produced by CEEREAL, but we noted that that same guidance referred to research conducted in the UK in 2000–2001 that suggested an average portion size of 49.3 g. The FSA’s "Food Portion Sizes" stated that 40 g was a typical weight for a crumpet, and this was within the range identified in Cereal Partner's own research, but neither source appeared to suggest that two crumpets were typically consumed per meal. Furthermore, "Food Portion Sizes" indicated that 15 g of margarine was typically spread on one crumpet, which would have made the total margarine content for the two crumpets 30 g. However, the quantities of Cookie Crisp cereal with milk and crumpets with margarine (and the other breakfast options that could be selected) were clearly stated and consumers could therefore see, for example, that the figures for Cookie Crisp Cereal were based on 30 g of the food (with 125 ml of semi-skimmed milk) and that the figures for the crumpets were based on 80 g of the food (with 20 g of margarine).
We considered that consumers would understand that the nutrient values shown on the website would vary if they consumed a greater or lesser amount than the portion sizes stated. Because we considered that the website had not made comparative nutrition claims, and because it explained clearly the basis on which the nutrient profiles had been calculated, we concluded that the nutrition information on the website was not misleading.
On that point, we investigated ad c) under CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. and 3.3 (Misleading advertising) and 3.38 3.38 Advertisements that include comparisons with unidentifiable competitors must not mislead, or be likely to mislead, consumers. The elements of the comparison must not be selected to give the advertiser an unrepresentative advantage. (Comparisons), but did not find it in breach.
Ads (a) and (b) must not appear again in their current form. We told Cereal Partners to ensure that comparative nutrition claims complied with the Code in future.