Summary of Council decision:
Four issues were investigated, all of which were Upheld.
A TV ad for Jane Plan featured a voice-over stating, “Jane Plan is one of the UK's leading diets, that delivers direct to your door. But what makes it so successful? Maybe it's the carefully selected ingredients in every calorie-controlled meal. Perhaps it's the care and experience of founder and weight-loss expert, Jane Michell. Maybe it's because you can choose your own bespoke menu so you can lose weight your way ...". The ad featured various images of meals under the plan. The ad also featured a number of people accompanied by on-screen text that indicated the amount of weight they had lost within a specific time. The voice-over stated, “But the thing that really makes Jane Plan successful is that it works, as thousands of others have already discovered. So whatever your weight-loss goals, order your diet today at Janeplan.com .... On-screen text at the close of the ad stated “Lose weight the easy way”.
The complainant challenged whether:
1. the claim “Jane Plan is one of the UK's leading diets, that delivers to your door” was misleading and could be substantiated;
2. the claim “lose weight the easy way”, was an authorised health claim on the EU Register of Nutrition and Health Claims made on Foods (the EU Register);
3. the claim “The thing that really makes Jane Plan successful is that it works”, was an authorised health claim on the EU Register; and
4. the ad breached the Code because it contained health claims that referred to a rate or amount of weight loss.
Jane Plan Ltd and Clearcast said, in their view, the product being advertised was not a food or a food supplement, but a diet plan and they believed the rules from section 13 of the BCAP Code on Food, food supplements and associated health or nutrition claims did not apply. They believed that section 12 of the BCAP Code was appropriate because it applied to "advertisements for weight-control and slimming foodstuffs, aids (including exercise products that make weight-loss or slimming claims), clinics and other establishments, diets, medicines, treatments and the like".
1. Jane Plan pointed out that the ad claimed for Jane Plan to be “one of the UK’s leading diets”, not the leading diet. They explained that they had appeared on TV regularly since July 2013 and, according to BARB TV viewing data, TV ads for Jane Plan had been seen over 170 million times, with only two competitors appearing with the same level of regularity.
They pointed out that the claim in full stated “Jane Plan is one of the UKs leading diets that delivers direct to your door” and asserted that Jane Plan was one of the most prominent diet delivery services in the UK. They believed “leading” in the claim was likely to be interpreted by viewers in a variety of ways, not only in terms of sales, but also in terms of consumer reviews, popularity and reputation. They said that Jane Plan was in the top two companies in the diet delivery industry for ‘share of voice’ (one of only two that advertised on TV) and brand awareness (from the popularity of Google searches) and in the top three for total number of reviews on noted review sites.
They explained that Jane Plan had featured frequently in the press and had been ranked higher, or reviewed more favourably, than other leading diets on numerous occasions. They cited reviews and awards by magazines where Jane Plan had scored highly, and testimonials from clients between 2012 and 2014. In addition, they pointed to an independent online review site where Jane Plan scored highly from hundreds of customer responses.
Jane Plan explained that what they offered was not only a diet food delivery service, but a diet in its own right and the Jane Plan diet book was highly rated. They said the founder, Jane Michell was a well-known weight loss expert and household name who appeared in the media frequently and they cited examples of that.
They provided information about turnover for some of the other diet delivery companies. They believed Jane Plan was second in the diet delivery market in terms of turnover.
Clearcast explained that Jane Plan had supplied substantiation to show that the plan had been reviewed favourably in many well-known and widely read magazines and newspapers, as well as online sources. They considered that had supported the qualified claim that "Jane Plan is one of the UK's leading diets".
2. Jane Plan said, in their view, the claim “lose weight the easy way” was not a health claim. They explained that it was easy to lose weight with Jane Plan, because there was no requirement for shopping for low calorie or special food (meals were delivered to the door), there was no need to prepare anything (all meals were ready to eat, or heat and eat), all meals were calorie counted and portion controlled and it was possible to take foods to work or eat them cold. They said extra fruits and vegetables could be added to the meals, but that was optional. They said they also called or emailed clients each week to offer help and support.
Jane Plan said the claim “lose weight the easy way” was made in relation to the programme as a whole, rather than just the food element. They said they provided a holistic approach to weight loss and that involved more than the actual food provided. They said that had they referred to particular ingredients or the nutritional value of their meals in the ad, they would agree that the provisions of section 13 of the Code applied. However, they considered the voice-over in the ad made clear that the claim was made in the context of the programme as a whole, despite some images of the food being shown.
Clearcast explained that the claim “lose weight the easy way” had been reviewed by a nutritional consultant. They believed it was not a health claim, but referred to the convenience of the plan.
Clearcast said Jane Plan was not a food only plan; it also involved email and telephone support. They believed there were many facets to the ad and its emphasis was not just on food. They said, in addition to the food, the ad focused on the founder, Jane Michell, how the plan worked in practice and the success of the followers of the plan. They said that whilst food was featured, the ad taken as a whole should be considered an ad for a diet delivery service rather than an ad for food. They made the distinction between the ad and an ad for branded meal replacement foods. They did not believe Article 13 of Regulation (EC) 1924/2006 on nutrition and health claims made on food (the Regulation) was relevant to the investigation since they did not accept that the advertising was for a food or that the main emphasis of the ad was on food. They considered the average viewer would interpret the main focus of the ad to be for a diet plan, rather than food, for the following reasons: the product name was a claim in itself and made clear the service advertised was a diet plan rather than food; the voice-over opened the ad describing the service as a diet plan; the voice-over described the meals as calorie-controlled and so indicated they had been tailored to work within a strict dietary regimen. Also, there was very little time within the ad when there was no visual reference to the name of the service.
3. Jane Plan said, in their view, the claim “The thing that really makes Jane Plan successful is that it works, as thousands of others have already discovered” was not a health claim, but was based on the fact that they had thousands of satisfied clients. They explained that their clients had told them about their success stories and recorded their experience online, through social media and in the press. They also knew that the plan worked, because they received many new clients through word of mouth.
Clearcast said, in agreement with the advertiser, the claim was not a health claim, but referred to the success of previous customers.
4. Jane Plan sent a breakdown of the clients shown in the ad and their rate of weight loss.
They believed the ad did not breach the Code because the ad was for a diet plan rather than a food. They said it was inherent in the name "Jane Plan" that they were advertising a plan, or diet regime, rather than food. They said they had never received a customer enquiry from someone who had the impression that Jane Plan was anything other than a diet plan. They believed the ad made that clear. For example, they believed the emphasis of the ad was on calorie control rather than food and referred to the voice-over where it stated, "Maybe it's the carefully selected ingredients in every calorie-controlled meal". They said the plan also involved a personal advice service from Jane and her team, ongoing support and consultation, which included an understanding of each customer's body mass index (BMI), BMR, any dietary requirements and overall weight-loss goals. They referred to the voice-over where it stated, "Perhaps it's the care and experience of founder and weight-loss expert, Jane Michell". They said that made clear that Jane was a "weight-loss expert" and therefore the ad was firmly rooted in losing weight as opposed to any other general nutrition.
They pointed out the voice-over also stated, "Maybe it's because you can choose your own bespoke menu, so you can lose weight your way" and explained that customers could create their own plan with any combinations of the meals, making the plan bespoke to each customer. There was also the option of answering a questionnaire and for the Jane Plan Nutritionist to create the plan for the customer.
Clearcast believed the substantiation provided by the advertiser, including the rate of weight loss and BMI for each client featured was compliant with the BCAP Code. They did not believe section 13 of the Code was relevant for the reasons set out under point 2 above.
The ASA noted that the claim could be interpreted in one of two ways. First, that Jane Plan was one of the UK's leading diets and it delivered food to a customer's door. Secondly, that Jane Plan was one of the UK's leading diet delivery services. We considered that the claim was ambiguous and viewers could interpret it either way.
We considered that a "leading" claim such as this was likely to be interpreted by consumers to mean that the service was one of the best-selling diet companies within the market. We noted that most of the substantiation provided by Jane Plan and Clearcast related to customer reviews and media coverage, and considered that this was insufficient to substantiate a "best-selling" claim. We noted the sales data provided by Jane Plan was in relation to diet delivery services in the UK, rather than all diet companies, and we considered therefore it was insufficient to substantiate a claim that Jane Plan was one of the UK's leading diet companies.
We noted that Jane Plan asserted that they were second in the diet delivery market in terms of sales and that they had obtained their figures using a private company research tool. We were concerned that they had not provided sales data for several of their competitors on the basis that they were small or operated on a local level, predominantly in London and we were also concerned that the substantiation provided related to one possible interpretation of the claim, whereas some viewers could interpret the claim to mean Jane Plan was one of the UK's leading diets. For those reasons, we considered that the claim had not been substantiated and concluded that it breached the Code.
On that point, the ad breached 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) and 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with Identifiable Competitors).
2., 3. & 4. Upheld
We noted Jane Plan and Clearcast's comments regarding the applicability of section 13 of the Code. We understood that Jane Plan was a weight-loss programme and diet delivery service that involved the consumption of normal, everyday foods that had been pre-packaged for convenience. We acknowledged that food was one element of the programme and that customers also received weekly email or phone support in addition to the pre-packaged meals. However, we noted that the ad featured close-up images of meals from the plan and considered that the emphasis in the ad was on the food element of the programme, which we considered was likely to establish a link in viewers' minds between the food and the claims, and, as such, the section 13 rules did apply.
We noted that according to the Regulation, which was reflected in the BCAP Code, only health claims listed as authorised on the EU Register were permitted in marketing communications for foods. Health claims were defined as those that stated, suggested or implied a relationship between a food, or ingredient, and health. Health claims that referred to a rate or amount of weight loss were not acceptable.
We considered that the claim "lose weight the easy way" was a health claim, and that the claim "The thing that makes Jane Plan successful is that it works" was also a health claim, because it was likely to be understood by viewers as a reference to weight loss. Because the claims had not been authorised on the EU Register, we concluded that the ad breached the Code. We also concluded that the ad breached the Code because it referred to rates or amounts of weight loss in relation to food.
On those points, the ad breached BCAP Code rules
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) are permitted in advertisements.
Only health claims listed as authorised in the EU Register or claims that would have the same meaning for the audience may be used in advertisements:
www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm. 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 13.6 13.6 These are not acceptable in advertisements for products subject to this section: and 13.6.5 13.6.5 Health claims that refer to a rate or amount of weight loss. (Food, food supplements and associated health or nutrition claims).
The ad must not appear again in its current form. We told Jane Plan Ltd to ensure in future they could substantiate comparative claims. We also told them not to make unauthorised health claims or refer to rates or amounts of weight loss in relation to food.