Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A TV ad, for Benecol yoghurt drinks, included a voice-over that stated, "Did you know two out of three adults have high cholesterol? Just like Linda here, until she discovered that … certain foods lower cholesterol. Like Benecol which is proven to lower cholesterol by up to ten per cent in just three weeks." On-screen text stated "LOWER CHOLESTEROL UP TO 10% in 3 weeks". Smaller text stated "The plant stanols (1.5g - 2.4g daily) in Benecol spreads, yoghurts or yoghurt drinks lowers [sic] cholesterol by 7-10% within 2 - 3 weeks as part of a healthy diet and lifestyle". The voiceover continued "Benecol, proven to lower cholesterol". Text also stated "PROVEN TO LOWER CHOLESTEROL".
1. Two viewers challenged whether the claim "two out of three adults have high cholesterol" was misleading and could be substantiated.
2. The ASA challenged whether the ad made unauthorised health claims.
1. Johnson & Johnson said total cholesterol of 5 mmol/l or less and low density cholesterol (LDL-C) of 3 mmol/l or less were generally regarded as desirable. Therefore, total blood cholesterol levels of higher than 5 mmol/l were considered high or raised. They said the 2011 World Health Organisation (WHO) statistics on non-communicable diseases showed the prevalence of raised cholesterol to be 65.6% for males and 65.7% for females. That equated to 65.6% overall, or 66% when rounded up to the next whole number. Johnson & Johnson also said many respected medical, health professional and leading commercial organisations in the UK were currently using the same or similar statements in their literature. They submitted an extract from the WHO document as well as examples of the claim being used on health websites.
Clearcast said the ad was cleared on the basis of the pre-production script and evidence submitted by Johnson & Johnson. That included 2007 and 2012 British Heart Foundation (BHF) reports and also reports from Heart UK, a cholesterol charity, and the British Dietetic Association (BDA) factsheet. They submitted the BHF, Heart UK and BDA documents and said they were satisfied with the multiple sources of evidence they had received, which confirmed that the claim had been widely published by respected charities.
2. Johnson & Johnson said the authorised health claim for the product was "Plant sterols and plant stanol esters have been shown to lower/reduce blood cholesterol. High cholesterol is a risk factor in the development of coronary heart disease". They believed the average consumer understood the association between high cholesterol and coronary heart disease (CHD) and said the fact that another relevant health claim had been authorised on the EU Register more recently, also demonstrated that consumers understood the importance of healthy cholesterol levels. They said all Benecol packaging included the full authorised claim for plant stanol esters and blood cholesterol, as well as a required statement related to other risk factors. They believed the claim had not been significantly altered from that authorised on the EU Register and emphasised that it was acceptable to adjust the wording of an authorised claim if it was not made stronger than that authorised. They said "proven to lower cholesterol", which was the central message, was not stronger than the full authorised claim, but was instead softer. They also considered it acceptable for the ad to claim a reduction of "up to ten per cent", because it was similar to the authorised claim, which related to a range of 7 to 10%, and because the range referred to in the authorised claim was also stated in the ad, as required. They believed the ad did not suggest that a reduction of more than 10% or mostly 10% would be achieved, or that a reduction could be achieved more quickly than was stated in the authorised claim, and therefore the claim was not exaggerated. They believed the claim complied with the conditions of use.
Clearcast did not specifically respond on point 2.
The ASA acknowledged that low cholesterol was generally desirable. We noted that the challenged claim referred to "cholesterol" generally and we considered the overall impression of the ad was such that the claim "two out of three adults have high cholesterol" was likely to be interpreted as referring to the product being able to lower a high total cholesterol level in otherwise generally healthy UK adults.
We understood from the BHF 2007 and 2012 reports submitted by Johnson & Johnson that total cholesterol of 5 mmol/l or greater was the 'audit level' used to assess individuals with established cardiovascular disease (CVD), diabetes or at high risk of developing CVD. We also noted from the evidence submitted that a cholesterol level of 4 mmol/l or less was more recently recommended for those individuals but we understood the level of 5 mmol/l, which was set in 1998 by the Joint British Societies, was retained for audit purposes. However, we noted that those measures did not relate to the generally healthy. In addition, we noted that the BDA factsheet stated that two out of three UK adults had LDL cholesterol levels that were too high but that it did not give a similar figure for total cholesterol, which we considered the ad would be understood to refer to. While we acknowledged that the NHS Choices article submitted stated that total cholesterol of less than 5 mmol/l was advised for healthy adults, we noted that it did not state that all levels of over 5 mmol/l were considered to be "high", rather than, for example, being considered raised or of moderate risk. In addition, we were concerned that the BHF 2007 report gave blood cholesterol levels for England but that it did not include a UK figure. The 2012 BHF report gave data based on the UK and stated that, in 2004, 66% of men and 67% of women had high cholesterol. However, the most recent figures included in that report were from 2008 and stated that 58% of men and 61% of women had high cholesterol at that time. The figures Johnson & Johnson cited from the WHO document were similarly based on 2008 figures.
We understood there was no official consensus that total cholesterol levels of over 5 mmol/l always equated to "high cholesterol" for generally healthy adults. We considered the ad implied that two-thirds of healthy UK adults currently had cholesterol levels that were generally accepted as "high", whereas we had not seen evidence that was the case. We concluded that the claim "two out of three adults have high cholesterol" was misleading and that the overall impression of the ad was such that it therefore exaggerated the health benefit of the product.
On this point, the ad breached 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).
We noted that according to EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation), which was reflected in the BCAP Code, only health claims listed as authorised on the EU Register were permitted in marketing communications. Specific health claims relating to reduction of disease risk were authorised under Article 14(1)(a). We noted there was such an authorised claim in relation to yellow fat spreads, dairy products, mayonnaise and salad dressings. The relevant authorised claim for plant stanol esters was that they had been "shown to lower/reduce blood cholesterol. High cholesterol is a risk factor in the development of coronary heart disease". We noted that the Regulation permitted some rewording of claims, if that was in order to aid consumer understanding and provided the reworded claim was likely to have the same meaning to consumers as the authorised claim. However, we were concerned that although the ad stated "LOWER CHOLESTEROL UP TO 10% in 3 weeks", and "PROVEN TO LOWER CHOLESTEROL", it did not include the required information about high cholesterol being a risk factor in the development of CHD. We therefore considered the meaning of the authorised disease risk reduction claim was significantly altered.
We noted that health claims could only be made for the nutrient, substance, food or food category for which they had been authorised and not for the product itself because the authorised claims described the particular health relationship the European Food Safety Authority said had been substantiated by scientific evidence. We were therefore concerned that the ad stated "Benecol which is proven to lower cholesterol", whereas the authorised reduction of disease risk claim was specifically for plant stanol esters. We acknowledged that the ad included the on-screen text "The plant stanols (1.5g - 2.4g daily) in Benecol spreads, yoghurts or yoghurt drinks lowers [sic] cholesterol by 7-10% within 2 - 3 weeks as part of a healthy diet and lifestyle", which the EU Regulation required was communicated to consumers. However, we were also concerned that that text was less prominent than the primary claims, which did not state the reduction range as it appeared in the authorised claim, or that it was plant stanol esters that had been shown could lower blood cholesterol, and instead referred to the product having been proven to lower cholesterol by "up to ten per cent". Given the prominence of the claims in the voice-over and in larger on-screen text in relation to the smaller text, we considered the relationship between the food and the health benefit had not been made sufficiently clear. We also considered the rewording of the health claim to refer to a reduction of "up to ten per cent" went beyond a change that would aid consumer understanding and that the presentation of the reduction of disease risk claim did not therefore properly reflect the conditions of use associated with the claim.
For the reasons given, we concluded that the claims did not meet the conditions of use specified in the EU Register and that they therefore breached the Code.
On this point, the ad breached BCAP Code rules 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 and 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 nutrition claims).
The ad must not be broadcast again in its current form. We told Johnson & Johnson Ltd to ensure future ads did not give a misleading impression of the health benefits of a product and that such benefits were presented clearly and without exaggeration. We also told them to ensure future health claims met the conditions of use associated with the relevant claim as specified in the EU Register.