On 14 June 2012, the 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 health, came into force. Unauthorised claims would be subject to a six-month period of grace until 14 December 2012. The complaints below were considered as they appeared in November 2012 under the then current rules on health and nutritional claims for foods.
A TV ad for a yoghurt featured a woman who said, "Last year, my mum fell badly. She was stuck at home for months. She knew calcium was important so, I thought she was taking good care of her bones. I just didn't get it. But what I've just learnt is that vitamin D is also very important on top. It helps fix the calcium on to the bones. It really made me think. So I've started eating new Calin+ everyday. It's the only yoghurt from Yoplait to bring 100% of the daily need in vitamin D in one single pot. And it's so good! You should try it too." A voice-over said, "New Calin+, calcium plus vitamin D for strong bones."
Three viewers challenged whether the overall impression given by the ad and the claim "Calcium plus vitamin D for strong bones" misleadingly implied that the product could help reduce the risk of weak or damaged bones by making them stronger.
Yoplait said the ad introduced the topic of what role calcium and vitamin D played in bone health; only one line in the ad referred to the mother's fall. They believed they had separated that event from claims about Calin+ and health claims associated with its ingredients.
Yoplait used a young actress to make viewers aware of the importance of consuming both calcium and vitamin D, whatever their age, and to promote that as a good eating habit. They said the ad's aim was to make viewers aware of the importance of vitamin D's role in bone health and throughout the ad, they ensured that Calin+ was never directly associated to any claim.
Yoplait said the claim "calcium plus vitamin D for strong bones" related directly to the ingredients, calcium and vitamin D, and for that reason, the voice-over stated, "New Calin +. Calcium plus vitamin D for strong bones." They believed the ad made clear to viewers the health claim related to the ingredients, rather than Calin+ itself.
Yoplait referred us to two European Food Safety Authority (EFSA) positive opinions – one about calcium and the other about vitamin D – both of which concluded that a cause and effect relationship had been established between their dietary intake and the maintenance of normal bones. Those opinions concluded the health claims "vitamin D contributes to the maintenance of normal bones" and "calcium is needed for the maintenance of normal bones" were supported by the evidence EFSA had seen.
Yoplait said although the claim "calcium plus vitamin D for strong bones" was not exactly the same as those claims, Regulation 1924/2006 (the Regulations) gave advertisers some flexibility in the actual wording of the health claim, provided it did not change the meaning of an authorised claim. Although the positive opinion referred to normal bones, they believed a claim for strong bones would have the same meaning to viewers as one about normal bones.
Clearcast consulted their nutritionist consultant for advice about the claim "calcium plus vitamin D for strong bones". Their expert said vitamin D was essential for normal bone formation and that the role of dietary vitamin D had been summarised in an EFSA opinion which had assessed health claims for vitamin D and the maintenance of normal bones and its absorption and utilisation of calcium. That opinion concluded a cause and effect relationship had been established between the dietary intake of vitamin D and maintenance of normal bones and the absorption and use of calcium. In addition, the opinion stated that for a food to bear that particular health claim for vitamin D, it should be at least a 'source of' vitamin D, the requirements of which were stated in the Annex to the Regulations.
Clearcast did not believe the claim exaggerated the benefits of vitamin D consumption and were assured that Calin+ contained 100% of the Recommended Daily Allowance (RDA) of vitamin D. Consequently, they believed the line "It's the only yoghurt from Yoplait to bring 100% of the daily need in vitamin D in one single pot" was simply stating a fact. They said the wording of the ad avoided the suggestion that Calin+ would go beyond the normal benefits of vitamin D. They noted the voice-over did not state that bones would be made stronger; merely that vitamin D played a role in bone health. For those reasons, they did not believe the ad was misleading.
The ASA understood that EFSA opinions should be regarded as valid scientific reports and noted that both of the EFSA opinions submitted by Yoplait had been positive in relation to particular health claims about for calcium and vitamin D and the maintenance of normal bones. The opinions concluded that the claims "vitamin D contributes to the maintenance of normal bones" and "calcium is needed for the maintenance of normal bones" were supported by the scientific evidence EFSA had seen.
To meet the conditions of use for those health claims, Calin+ needed to contain at least 15% of the RDA for calcium and vitamin D; we noted it contained 50% and 100% RDA for calcium and vitamin D respectively. As Yoplait had adapted the wording of the health claim in the positive opinion, which was permitted under the Regulations provided the meaning of the claim did not change, we therefore considered whether their claim "calcium and vitamin D for strong bones" would have the same meaning for consumers as "normal bones". We considered viewers were likely to interpret normal bones as being strong bones and they would interpret the claim to mean calcium and vitamin D maintained that strength. We therefore concluded that this health claim had been substantiated and in itself was not misleading.
However, we considered the ad implied from the sentence "She was stuck at home for months" that the mother had suffered from a bone fracture. In addition, the sentence "She knew calcium was important, so I thought she was taking good care of her bones" implied that she thought had her mother been aware of the role of dietary vitamin D in bone health, she may not have suffered a bone fracture.
The ad then went on to make clear that Calin+ contained vitamin D and we considered it implied to viewers that the woman had now begun to eat it because of the vitamin D content, and of her mother's experience, to help protect her bones. We therefore considered the ad had created the overall impression that vitamin D in addition to calcium could help reduce the risk of suffering a bone fracture. Consequently, we considered it could be interpreted as making a reduction of disease-risk claim (RDR claim).
Although Yoplait believed they had not made an RDR claim, they provided two EFSA opinions on reduction of risk of falling in men and women aged 60 years and over and reduction of risk of osteoporotic fractures in post-menopausal women over 50. However, RDR claims were only acceptable under the BCAP Code if they had been authorised by the European Commission (the Commission). No RDR claims for calcium or vitamin D had been authorised by the Commission and we therefore concluded on that point, the ad breached the Code.
We investigated the claim "calcium plus vitamin D for strong bones" under BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising) and 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) but did not find it in breach.
The ad breached BCAP Code rule 13.6.2 13.6.2 Claims that state or imply a food prevents, treats or cures human disease. Reduction-of-disease-risk claims are acceptable if authorised by the EU Register (Food, food supplements, and associated health or nutritional claims).
The ad must not be broadcast again in its current form.