On 25 May 2012, Commission Regulation (EU) No 432/21012 of 16 May 2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children's development and health, was published in the Official Journal of the European Union (EU). The Regulation entered into force on 14 June 2012.
A TV and VOD ad promoted Flora Cuisine.
a. The TV ad featured Vernon Kay and his mother conversing in a kitchen. Vernon said "What's that?" and his mother replied, "Flora cuisine, 45% less saturated fat than olive oil". He said "Really?" and she responded "Yeah, I'm looking after your little ticker ...". On-screen text stated "As part of a healthy diet and lifestyle". A voice-over at the ad stated, "New Flora Cuisine, it's star treatment for the hearts you love."
b. The VOD ad was the same as ad (a).
Six complainants challenged whether the claims "45% less saturated fat than olive oil" and "I'm looking after your little ticker" were misleading and could be substantiated, because they believed these implied that Flora Cuisine had health benefits for the heart that olive oil did not, which they understood was not the case.
Unilever UK Ltd (Unilever) said it was generally accepted that many UK diets contained too much saturated fat and provided a Department of Health (DH) study in support of that claim. They said the claims were tantamount to saying that Flora Cuisine had a benefit over olive oil, because it contained 45% less saturated fat, and reducing saturated fat intake had a benefit for heart health. They said the two products had comparable levels of unsaturated fat and the ad focused on the fact that consumers could reduce their saturated fat intake by switching to Flora Cuisine from olive oil. They added that the product contained omega 3 and 6 fatty acids, which had also been proven to have a positive effect on heart health.
They said the claim "45% less saturated fat than olive oil" was a comparative nutrition claim with olive oil and the annex of Regulation 1924/2006 set out that claims such as "Reduced [name of Nutrient]" were permitted if the following rules were complied with: "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 product." They added that Article 9 of Regulation 1924/2006 stated "Without prejudice to Directive 84/450/EEC, a comparison may only be made between foods of the same category, taking into consideration a range of foods of that category. The difference in the quantity of a nutrient and/or the energy value shall be stated and the comparison shall relate to the same quantity of food".
They said they had carried out an extensive study which took account of a wide range of olive oil products available on the UK market and had looked at the difference in saturated fat between Flora Cuisine and the range of olive oil products. They provided documentation which showed that the lowest saturated fat content of any competitor’s olive oil product surveyed contained 13 g of saturated fat per 100 ml, compared to Flora Cuisine which contained 7 g per 100 ml. They added that they had also looked at data from a leading nutrition industry text book on the nutritional values of various products, which showed that the mean saturated fat value of 35 samples of olive oil was 13.01 per 100 ml. They said they had made the smallest saturated fat reduction claim, rather than selecting an average and their comparison was against the lowest saturated fat content of an olive oil product available in the range they studied (13 g per 100 ml) and it therefore met the definition in the annex, which required at least a 30% saturated fat reduction to make that type of claim, and they had claimed a 45% reduction.
They had also looked at the saturated fat levels of other cooking oils and provided the mean saturated fat levels for rapeseed oil, sunflower oil and vegetable oil, based on data from the nutrition industry text book. They understood that, for a product to bear a "reduced saturated fat" claim, it had to have at least 30% less saturated fat than a range of products it was comparing against. They said that all the alternative cooking oils sampled had a lower saturated fat content than the lowest saturated fat content for olive oil available in the range they studied: 13 g per 100 ml. They said the requirement for making a reduced saturated fat claim was a 30% reduction, and even the lowest saturated fat level of olive oil fell a long way short of the 30% saturated far reduction required to make a reduced saturated fat claim.
With regard to the claim "Yeah, I'm looking after your little ticker", they referred to Article 10.3 of Regulation 1924/2006 which stated "Reference to general, non-specific benefits of the nutrient or food for overall good health or health-related well-being may only be made if accompanied by a specific health claim included in the lists provided for in Article 13 or 14". They stated that, when the ad had initially appeared and when the complaint was first received, Article 13, which set out the health claims list ('Article 13' list) referred to in Article 10, was awaiting final approval by the European Parliament. They said the list contained the following specific claim on reduction of saturated fat, "Reducing consumption of saturated fats contributes to the maintenance of normal blood cholesterol levels", which would be permitted where the following conditions were met: "The claim may be used only for food which is at least low in saturated fatty acids, as referred to in the claim low saturated fat or reduced in saturated fat as referred to in the claim reduced [name of nutrient] as listed in the Annex to Regulation 1924/2006". They stated that, according to DH Guidance, it was not a requirement to include the claims from the Article 13 list with a general health claim until the list of claims was authorised, which it had not been when the ad initially appeared, and therefore the reference to the general heart health benefits of reducing saturated fat in the diet was justified and the claim was acceptable on that basis.
Clearcast said their consultant had considered the documentation provided by Unilever and considered that it showed the product had health benefits over olive oil. They said the ad's basic message was that Flora Cuisine contained less saturated fat than olive oil and was therefore better for heart health, due to the increased content of mono and polyunsaturated fatty acids and the reciprocal reduction of saturates. They felt that the ad expressed the proven benefits of the product and did not denigrate olive oil by suggesting it did not have health benefits and they were happy to approve the ad on that basis.
The ASA consulted the Department of Health. We understood the claim "45% less saturated fat than olive oil" was an example of a reduced nutrition claim that was in the Annex to Regulation 1924/2006, as the advertisers had recognised, and that the use of a claim must comply with the general rules set out in Regulation 1924/2006. We also understood that the comparator products, in this case olive oil, must not have a composition that would allow them to bear the same claim, namely "45% less saturated fat than ...".
We considered that the claim "45% less saturated fat than olive oil" was a comparative claim, from which consumers would infer that they could reduce their saturated fat intake by switching from olive oil to Flora Cuisine, but did not consider that the claim implied that Flora Cuisine was a low saturated fat product. We noted that the advertisers had considered a range of appropriate products (a range of olive oils), had based the claim on the lowest saturated fat content of olive oil product available in the range they studied and had provided documentation which showed that olive oil did not have a composition that allowed it to bear the same claim. In light of the supporting documentation provided, we acknowledged that Flora Cuisine had a lower amount of saturated fat than the olive oil with the lowest amount of saturated fat in the range the advertisers had considered and also that olive oil could not itself bear a lower saturated fat claim. We therefore considered that the comparative claim "45% less saturated fat than olive oil" had been supported and was not misleading.
We considered that the claim "I'm looking after your little ticker" was a general health claim and understood that, in light of the regulations in place when the ad was initially broadcast and the complaint was received, the claim was an Article 10(3) general, non-specific health claim and did not need to be accompanied by an authorised specific claim at that time.
We considered that the claim was likely to be understood to mean that Flora Cuisine contributed to the maintenance and normal functioning of the heart. We noted that the product contained Omega 3 fatty acids, which we understood contributed to the normal functioning of the heart and considered that the claim was supported on that basis. We also considered that some consumers were likely to understand from the ad that Flora Cuisine was "looking after your little ticker" because it had "45% less saturated fat than olive oil" and that the product therefore contributed to the maintenance and normal functioning of the heart, compared to the product with which it was being compared, namely olive oil. We understood that reducing saturated fat intake contributed to the normal functioning of the heart and considered that the claim was also supported on that basis.
Because we had seen evidence that Flora Cuisine contained "45% less saturated fat than olive oil" and that olive oil could not bear the same claim, and because we had seen evidence that Flora Cuisine could contribute to the maintenance and normal functioning of the heart, compared to olive oil, because it would reduce saturated fat intake, we concluded that the ad was not misleading.
We investigated ad (a) under BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation), 3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service. (Exaggeration) and 13.4.2 13.4.2 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 (Food, food supplements and associated health or nutrition claims), but did not find it in breach.
We investigated ad (b) under CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and 15.1 15.1 Marketing communications 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. Claims must be presented clearly and without exaggeration. (Food, food supplements and associated health or nutrition claims), but did not find it in breach.
No further action necessary.
We noted, however, that from 14 December 2012, six months from when Commission Regulation (EU) No 432/21012 entered into force, general non-specific health claims, such as "I'm looking after your little ticker" would need to be accompanied by an authorised specific claim.