Summary of Council decision:
Two issues were investigated, both of which were Upheld.
An email sent to members of the ASDA Baby and Toddler Club promoted SMA Toddler Milk. Text under the heading "SMA - Give your toddler important nutrients with SMA Toddler Milk" stated "When your baby becomes a toddler, he needs a nutritious balanced diet to keep him healthy and full of energy. Dairy is a great way to give him lots of nutritious goodness and toddlers should have two to three servings a day. Although cows' milk has many nutrients, it doesn't contain much iron or vitamin D, so SMA Toddler Milk is a convenient option. It's made from cows' milk but is enriched with essential vitamins and minerals to help give your little one the important nutrients he needs as part of a healthy balanced diet to help him grow. Here's why SMA Toddler Milk is ideal for your little one: -40 times more iron than cows' milk -Vitamin D to support your toddler's normal growth and bone development ... -Two 200ml servings each day give your toddler 86% of his vitamin D and 60% of his iron requirements ...".
Baby Milk Action challenged:
1. the comparisons between SMA Toddler Milk and cows' milk which, if they fell within the definition of comparative nutrition claims, were required to be listed in the Annex of EC Regulation 1924/2006; and
2. whether the ad breached the Code, because it implied that health could be affected by not consuming SMA Toddler Milk and gave rise to doubt the nutritional adequacy of cows' milk.
1. Nestle UK Ltd said the purpose of the e-mail was to provide details about the benefits of both cows' milk and SMA Toddler Milk. They acknowledged that the ad compared the two and considered that that comparison was made in accordance with EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation).
Nestle identified the claims "it [cows' milk] doesn't contain much iron or vitamin D, so SMA Toddler milk is a convenient option" and "40 times more iron than cows' milk" as comparative nutrition claims, which would therefore need to be listed in the Annex of the Regulation. They said they considered the claims to fall within the scope of the listed claim that a particular nutrient had been "increased" in a product. They noted that, in order to comply with the conditions of use set out for that type of claim, the product would need to be entitled also to bear the non-comparative claim that it was a "source of" that nutrient, and would normally need to contain at least 30% more of the nutrient than the product to which it was compared. However, they contended that the percentage difference required in respect of "increased" claims for a micronutrient specifically should be understood to derive from the limit imposed by a claim that the food was "high in" that micronutrient, because they considered that "high in" and "increased" claims were likely to carry the same meaning for consumers. Nestle supplied information showing the iron and vitamin D content of SMA Toddler milk and cows' milk and stated that in view of that data they considered it acceptable to claim that SMA Toddler Milk contained "increased" vitamin D and iron in respect of cows' milk.
Noting that the Regulation limited the use of comparative claims to those comparing foods of the same category, Nestle said they believed that cows' milk and SMA Toddler Milk were foods of a similar category. They considered that this position was supported by EC guidance advising that products being compared should be foods belonging to a group of foods that were similar in terms of nutritional content. Nestle supplied details of the protein, fat, carbohydrate, energy and sugar content of SMA Toddler Milk and cows' milk. They stated that SMA Toddler Milk could be used to replace cows' milk in many dietary situations for young children and that there were no major nutritional differences between the two. They noted that a high percentage of children aged 12−18 months consumed cows' milk every day and said they believed that consumers reading the ad would understand that toddler milks could be used in place of cows' milk as a drink or could be added to food as a direct substitute, thus meaning that most consumers would consider the two to be foods of the same category.
ASDA Stores Ltd considered that, rather than making claims that SMA Toddler Milk contained "increased" amounts of iron and vitamin D in respect of cows' milk, the ad could reasonably be seen instead to claim that the product was a "source of", or even was "high in", those nutrients. They therefore considered that the claims were permitted by the Regulation.
ASDA agreed with Nestle's view that cows' milk and SMA Toddler Milk were foods of the same category for the purposes of the Regulation. They stated that although cows' milk and SMA Toddler Milk had different vitamin and mineral values their compositions, in terms of which constituents were present, were similar. They also stated that the occasion of consumption − with meals and/or at bedtime − was comparable, and that there was an association in the purpose of consumption, namely being to ensure intake of dairy as part of a balanced diet.
2. Nestle cited the results of a number of studies indicating that young children in the UK were not generally receiving recommended amounts of vitamin D and/or iron in their diets. They said because milk was part of a child's everyday diet, toddler milks could play an important role in contributing to the dietary adequacy of young children's diets, and substituting some or all of the liquid cows' milk intake with such fortified milk would help support good nutrition. They noted government advice that babies and young children between six months and five years of age should be fed vitamin drops containing vitamin D, unless they consumed at least 500 ml of formula. They considered that this demonstrated that toddler milks were a valuable source of dietary vitamin D and could be used in place of supplements to reduce the risk of vitamin D deficiency.
Nestle did not agree that the ad implied that health could be affected by not consuming SMA Toddler Milk or gave rise to doubt the nutritional adequacy of cows' milk. They said the ad did not emphasise SMA Toddler Milk as being the only way to obtain nutrients in a toddler's diet. They drew attention to the claims in the ad that a toddler "needs a nutritious balanced diet", that "Dairy is a great way to give him lots of nutritious goodness and toddlers should have two to three servings a day" and "cows' milk has many nutrients", noting that although they stated that cows' milk was low in iron and vitamin D, they had also highlighted that it did contain many other nutrients.
ASDA also considered that the ad placed strong emphasis on the need for a balanced diet, which they pointed out would necessarily involve various inputs. They stated that the ad positioned SMA Toddler Milk as a "convenient" option, rather than the only way of achieving a desired end.
The ASA considered that the claims "it [cows' milk] doesn't contain much iron or vitamin D, so SMA Toddler milk is a convenient option" and "40 times more iron than cows' milk" would be understood by consumers as a comparison between the iron and vitamin D content of SMA Toddler Milk and cows' milk. The claims, or adapted wording with the same meaning for consumers, therefore needed to be listed in the Annex of the Regulation.
Because the clear implication from the ad was that SMA Toddler Milk contained more iron and vitamin D than cows' milk, we considered that the claims carried the same meaning for the consumer as a claim stating that the content in one or more nutrients had been increased. We did not agree with Nestle's view that a claim that a food was "high in" a particular vitamin or mineral would carry the same meaning as the comparative claim that it contained "increased" amounts of that vitamin or mineral in respect of another food.
We noted from the Annex that the comparative nutrition claim "increased [name of the nutrient]" was only authorised where the nutrients compared were not vitamins or minerals. Because that precluded the use of claims that the iron and/or vitamin D content of a product had been "increased", or claims likely to carry the same meaning, and in the absence of any other listed comparative nutrition claim that would authorise the use of the claims "it [cows' milk] doesn't contain much iron or vitamin D, so SMA Toddler milk is a convenient option" and "40 times more iron than cows' milk", we concluded that those were unauthorised comparative nutrition claims for the purposes of the Regulation and thereby breached the Code.
Furthermore, 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). Although no definition of food categories was provided in the Regulation, EC Guidance on the use of comparative claims advised that products being compared should be foods belonging to a group of foods that were similar in terms of nutritional content, and suggested that the notion of food categories should also take account of the occasion of consumption and/or the purpose of consumption. Whilst we were satisfied that cows' milk and toddler milk could form part of the same food category for the purposes of the Regulation, we considered that cows' milk alone was not representative of the foods in that category. In order to ensure that the category was properly represented, any comparative claim for SMA Toddler Milk would need to be made against a range of foods in the category that included other toddler milks. We noted that other toddler milks were likely to be similar to SMA Toddler Milk in terms of nutritional content. We therefore understood that it was unlikely that the conditions of use for any comparative claim could be met when comparing SMA Toddler Milk to cows' milk and other toddler milks.
Because we considered that the ad made comparative nutrition claims comparing the nutrients in SMA Toddler Milk with those in a food that was not representative, on its own, of the food category to which it belonged, and because the claims related to increased vitamin and mineral content and therefore did not fall within the scope of the authorised comparative nutrition claim "increased [name of the nutrient]" or any other authorised claim, we concluded that the claims did not comply with the Regulation and were in breach of the Code.
On that point, the ad breached CAP Code (Edition 12) rules
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.
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm. 15.3 15.3 Comparative nutrition claims must compare the difference in the claimed nutrient to a range of foods of the same category which do not have a composition which allows them to bear a nutrition claim. and 15.3.1 15.3.1 A marketing communication may use one product as the sole reference for comparison only if that product is representative of the products in its category. (Food, food supplements and associated health and nutrition claims).
We acknowledged Nestle's comment that the ad made clear that cows' milk did contain "many nutrients", albeit "not much iron or vitamin D". We noted that the ad referred to the need to feed toddlers a "nutritious balanced diet", before stating that cows' milk "doesn't contain much iron or vitamin D, so SMA Toddler Milk is a convenient option". We considered that readers were likely to understand from the ad that iron and vitamin D were an important feature of a nutritious, balanced diet. We also considered, however, that the phrase "it [cows' milk] doesn't contain much iron or vitamin D, so SMA Toddler milk is a convenient option" implied that, unless a toddler was fed SMA Toddler Milk, his/her primary source of iron and vitamin D would be cows' milk. We understood that this was not the case and that those nutrients were likely to derive from other parts of the toddler's diet and lifestyle; in the case of iron from a range of foods including meat, fish and poultry, and for vitamin D from sunlight as well as some foods such as oily fish and eggs. We also noted current government advice that children under the age of five years should receive daily vitamin drops containing vitamin C, which could help to aid absorption of iron, and vitamin D (unless they were fed at least 500 ml of formula milk per day). We understood that the exception for children fed formula milk reflected concerns regarding the potential adverse effects of excessive vitamin intake and was not intended to imply that formula should be used as a means of supplementing the diet. Current NHS advice to parents was that there was no need to switch to feeding toddler and growing-up milks, as opposed to cows' milk.
We considered that the overall implication of the ad was that young children should consume SMA Toddler Milk in preference to cows' milk to ensure that they received sufficient amounts of vitamin D and iron, whereas we understood that this was not necessary. On that basis, we concluded that the ad breached the Code because it implied that a young child's health could be affected by not consuming SMA Toddler Milk and gave rise to doubt the nutritional adequacy of cows' milk.
On that point, the ad breached CAP Code (Edition 12) rules 15.6 15.6 These are not acceptable in marketing communications for products within the remit of this section: 15.6.1 15.6.1 Claims that state or imply health could be affected by not consuming a food and 15.6.5 15.6.5 Claims of a nutrition or health benefit that gives rise to doubt the safety or nutritional adequacy of another product (Food, food supplements and associated health and nutrition claims).
The ad must not appear again in its current form. We told ASDA Stores Ltd and Nestle UK Ltd to ensure that any comparative nutrition claim for SMA Toddler Milk was made against a representative food or range of foods within the same food category, and to ensure that claims comparing the vitamin and/or mineral content of a food were listed within the Annex of EC Regulation 1924/2006 on Nutrition and Health Claims on Foods. We also told them not to state or imply that health could be affected by not consuming a product, or to give rise to doubt the nutritional adequacy of a reference product.