Background
Summary of Council decision: Three issues were investigated, all of which were Upheld.Ad description
A website for Kellogg’s, www.kelloggs.co.uk, seen in June 2022, featured a listing for “All-Bran Prebiotic Oaty Clusters” with text that stated “Prebiotic* goodness to fuel your gut … Prebiotic Oaty Clusters contains natural prebiotic chicory root fibre,Issue
The complainant challenged whether the following health claims complied with the Code:
1. “Prebiotic” and “Prebiotic goodness to fuel your gut”;
2. “Chicory root fibre contributes to normal bowel function by increasing stool frequency”; and
3. “contains natural prebiotic chicory root fibre, helping support digestive health by increasing levels of important bacteria living in your gut, nourishing your gut microbiota”.
Response
1., 2. & 3. Kellogg Europe Trading Limited t/a Kellogg’s explained prebiotics were a non-digestible food ingredient that could deliver beneficial effects on health by selectively stimulating the growth and/or activity of specific health-promoting bacteria in the colon. Prebiotics were substances that fed the microorganisms already present in the gut and selectively increased levels of beneficial microorganisms. They cited national guidance on Regulation (EC) No 1924/2006 (the 2006 Regulation) from the UK, Denmark, and France, the latter of which stated that the term "prebiotic" could be considered a non-specific health claim. “Prebiotic” was therefore a general, non-specific health claim, and had been accompanied in the ad by the specific health claim relating to chicory inulin.
Kellogg’s said the product contained 5.4 grams of chicory root fibre per 45 gram serving. They explained that inulin was a dietary fibre found in several fruits and vegetables and that chicory root had among the highest concentrations of the substance. In 2015 the European Food Safety Authority (EFSA) had approved a proprietary claim for native chicory root inulin in relation to bowel function, for ingredient supplier BENEO-Orafti (BENEO), with the wording “chicory inulin contributes to normal bowel function by increasing stool frequency”. They had used the term “chicory root fibre” instead of “chicory inulin” in their advertising as they believed the term would have the same meaning for consumers. The 2015 EFSA Opinion on the substance (the Opinion) stated that chicory inulin stimulated bacterial growth in the gut and increased bacterial cell mass. They understood that was a prebiotic mechanistic effect, and so the specific health claim was relevant to the general health claim.
Kellogg’s cited the conditions of use for the health claim and said they contained two requirements – first, “Information shall be provided to the consumer that the beneficial effect is obtained with a daily intake of 12 g chicory inulin”, and second “The claim can only be used for food which provides at least a daily intake of 12g of chicory inulin”. In their view it was therefore reasonable for a food manufacturer to define the recipe of its food with an appropriate amount of chicory inulin in relation to its application, position size, and possible pattern of consumption, provided the consumer was properly informed. Furthermore, translations of the conditions of use in other languages – Spanish, French, Italian, Danish, Dutch, and German – had used the plural form of the word “food”. The ad explained to consumers that the full beneficial effect of the substance was obtained through a daily intake of 12 grams, and Kellogg’s highlighted that the conditions of use for the claim did not state 12 grams of chicory inulin had to be derived only from the food about which the claim was made. They provided a study, assessed as part of the Opinion, in which 12 grams of inulin were consumed by participants across three meals in portions of four grams as evidence the required amount of the substance need not come from one single food. Participants in the study could consume the inulin in any food or drink they pleased, which they said demonstrated the consumption of inulin was independent from the food matrix. Since the claim had been authorised, in part, on the basis of that study, EFSA’s intention had been that the term “daily intake” in the conditions of use referred to an intake of 12 grams of inulin across several portions, without limitation to one particular food. They cited a number of examples of other health claims whose conditions of use specified that a single dose must be consumed daily to receive the relevant claimed benefit . The conditions of use for those substances – such as lactitol, alpha-cyclodextrin, and beta-glucan – all stated the claimed effect had to be derived from a specific portion of the substance alone, whereas the conditions of use for chicory inulin contained no such stipulation. They also provided a list of foods along with their inulin content – including onion, leek, banana, rye, and wheat – and said an average consumer would not reasonably consume any of the foods alone in a quantity sufficient to obtain 12 grams of inulin. For example, up to 40 bananas or six onion bulbs a day.
Kellogg’s said the 2006 Regulation stated a specific health claim could be used where the quantity of a product that could reasonably be expected to be consumed provided a significant quantity of the substance to which the claim related. Or, where a “significant quantity” had not been defined in legislation, a significant quantity would be an amount that produced the nutritional or physiological effect claimed. What constituted a “significant quantity” of chicory inulin had not been laid down in legislation. However, given the study on which the claim was based had broken down servings of inulin into three four-gram portions, a portion of the advertised cereal, which provided 45 percent of the required intake of inulin, represented a significant quantity.
Kellogg’s said the ad had made it clear to consumers that 5.4 grams of chicory root fibre per serving equated to 45% of required daily intake, and the average consumer would understand that to obtain at least 12 grams of inulin they would need to consume either three portions of the cereal, another food product, or the cereal and another food product. The information encouraged consumers to eat the product as part of a healthy diet.
Assessment
1. & 2. Upheld
The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food, drink or ingredient and health. Additionally, general health claims were defined in the Code as references to general benefits of a nutrient or food for overall good health or health-related well-being. Such claims were acceptable in ads only if accompanied by a specific authorised health claim.
The EC guidance on the 2006 Regulation, which was part of retained EU law, stated a claim was a health claim "if in the naming of the substance or category of substances, there is a description or indication of a functionality or an implied effect on health". The guidance went on to give as an example "the reference to probiotic/prebiotic [in the claim “contains probiotics/prebiotics"] implies a health benefit". Guidance on the 2006 Regulation from the Department of Health and Social Care (DHSC) stated "[…] claims, such as 'probiotics and prebiotic fibre', refer to a function in the body, and are therefore defined as health claims and will need to be authorised via Article 13. 'Probiotic' could at the very least be considered a general, non-specific health claim […] and so will, in due course, have to be accompanied by a specific authorised health claim". We understood the term “prebiotic” referred to a substance that did not break down in the gut, and promoted the growth of certain strains of bacteria in that part of the body.
The EFSA Opinion cited by Kellogg’s, which assessed the evidence provided by BENEO to EFSA in support of the proprietary claim, made no finding on whether increasing microorganisms in the gut was itself a beneficial physiological effect, and stated only that maintenance of normal defecation by increasing stool frequency was a beneficial physiological effect. Additionally, we noted EFSA’s Panel on Dietetic Products, Nutrition and Allergies (NDA) – a panel that dealt with questions related to, among other things, human nutrition and health claims on food products – published guidance in 2011 on the scientific requirements for health claims related to gut and immune function. A specific issue addressed by the Panel was which claimed effects were beneficial physiological effects. On the available evidence, the Panel concluded in its guidance it had not been established that increasing numbers of gastrointestinal microorganisms was in itself a beneficial physiological effect.
We considered neither the various pieces of guidance – the EC and DHSC Guidance on the 2006 Regulation, and the NDA Panel’s guidance on gut health and immune function – nor the Opinion gave a clear indication as to whether a reference to “prebiotic” alone, or in combination with other information, would be a specific or general health claim. We considered consumers would understand a “prebiotic” substance was supposed to be connected to good gut health, but that they would not necessarily know by what specific physiological function or functions that effect was achieved. We also considered the term “prebiotic” itself was not explicit as to by what physiological function(s) good gut health was achieved. We considered a general, unfocussed reference to “prebiotic” would therefore likely be a general health claim, which would then need to be accompanied by a relevant authorised specific health claim to comply with the Code.
The ad featured the claims “Prebiotic* goodness to fuel your gut” and “Prebiotic Oaty Clusters”. We considered the term “prebiotic” when used with a reference to specific conditions or benefits would likely be a specific health claim, while a general, unfocussed reference to “prebiotic” would be more likely to be a general health claim. We understood claims relating to the “gut” referred to microorganisms that lived in the digestive tracts of humans, and did not refer to a specific physiological process or function of the body. We therefore considered the claims, as they appeared in the ad, suggested the product was good for overall gut health, and as such were general health claims for the purpose of the Code.
The claims were linked by asterisks to text that stated “Chicory root fibre contributes to normal bowel function by increasing stool frequency. All-Bran Prebiotic Oaty Clusters Original contains 5.4g chicory root fibre per serving, i.e. 45% of the required daily intake. Full beneficial effect is obtained with a daily intake of 12g chicory root fibre”. Kellogg’s indicated that was based on an authorised specific health claim relating to chicory inulin, and that it was intended to accompany the general health claims in the ad as required by the Code.
We assessed whether the use of that authorised specific health claim in the ad complied with the Code. The CAP Code required marketing communications that contained nutrition or health claims must be supported by documentary evidence to show they met the conditions of use associated with the relevant claim, as specified in the applicable register.
The wording of the ad’s claim about chicory inulin mirrored that of the claim referenced by Kellogg’s, which was authorised in the Great Britain Nutrition and Health Claims Register (GB NHC Register): “Chicory inulin contributes to normal bowel function by increasing stool frequency”. The conditions of use stated “Information shall be provided to the consumer that the beneficial effect is obtained with a daily intake of 12g chicory inulin. The claim can be used only for food which provides at least a daily intake of 12g of native chicory inulin, a non fractionated mixture of monosaccharides (<10%), disaccharides, inulin-type fructans and inulin extracted from chicory, with a mean degree of polymerisarion > or = 9".
Article 5(1) of the 2006 Regulation stated the use of health claims was only permitted where, among other things: (1)(b)(i) the nutrient or other substance for which the claim was made was contained in the final product in a significant quantity as defined in applicable enactments or, where such rules did not exist, in a quantity that would produce the nutritional or physiological effect claimed as established by generally accepted scientific evidence; and (1)(d) the quantity of the product that could reasonably be expected to be consumed provided a significant quantity of the nutrient or other substance to which the claim related, as defined in applicable enactments or, where such rules did not exist, a significant quantity that would produce the nutritional or physiological effect claimed as established by generally accepted scientific evidence.
Kellogg’s said that while what constituted a “significant quantity” of chicory inulin had not been defined in legislation, that term had been defined in Annex XIII of the 2011 Regulation as 15 percent of the NRV of specified vitamins supplied by 100 grams of a product. Kellogg’s product contained 45 percent of the required daily intake per 45 gram portion. However, we considered what constituted a “significant quantity” of chicory inulin had been defined with reference to Article 5(1)(b)(i) and (d) of the 2006 Regulation in the EFSA Opinion, which recommended the authorisation of the specific health claim. The Opinion had established that 12 grams of the product would produce the physiological effect. We considered that meant a “significant quantity” would be 12 grams of chicory inulin, and that quantity would have to be gained from a reasonable quantity of Kellogg’s product. We also considered the chicory inulin content of the product analogously meeting the conditions of use for a “source of fibre” claim was not relevant since that claim related to a different nutrient.
A box of Kellogg’s granola contained 380 grams of the product, and one 45 gram serving provided 5.4 grams of chicory inulin. That meant consumers would need to eat just over two portions of the granola per day to achieve the claimed health benefit.
The EFSA Opinion referenced that six studies – in which the chicory inulin was administered in a range of ways: powder in sachets, in bakery products, breakfast cereals, chocolate drinks – consistently showed that consumption of at least 12 grams per day of “native chicory inulin” increased stool frequency, but that of those six studies, the proprietary study provided by Kellogg’s was used to establish the conditions of use for the claim. That study involved participants dissolving 4 grams of inulin powder into a drink, which they then consumed at breakfast, lunch, and dinner. We considered that method of obtaining inulin was different to consuming 12 grams of inulin through a normal diet, and differed greatly from obtaining it through the advertised product alone.
The ad stated one portion of the cereal constituted 45 percent of the required daily intake of chicory inulin. However, we noted the ad provided no guidance on where the remaining 6.6 grams of inulin could be found once 5.4 grams had been consumed from the granola. We considered the level of consumption of the product required to achieve an intake of 12 grams and therefore the claimed health benefit was unreasonable, and the wording of the conditions of use for the claim, as well as the above mentioned wording of Article 5 of the 2006 Regulation, meant the specific health claim could only be used where the product(s) referred to in the ad contained at least 12 grams of chicory inulin in readily consumable form, unless further information was provided clearly and prominently to consumers regarding where they might realistically source the additional inulin necessary for the claimed health benefit.
For those reasons we considered the ad did not meet the conditions of use for the authorised specific health claim in relation to chicory inulin and therefore concluded it had breached the Code in that regard. We further concluded that, because the specific health claim as stated in the ad did not meet the relevant conditions of use, the general health claims in the ad had not been accompanied by a relevant, authorised specific health claim and the ad therefore also breached the Code in that regard.
On those points, the ad breached CAP Code (Edition 12) rules 15.1, 15.1.1, and 15.2 (Food, food supplements and associated health or nutrition claims).
3. Upheld
We considered the claim “helping support digestive health by increasing levels of important bacteria living in your gut, nourishing your gut microbiota” described a specific functionality by which digestive health was supported (the increased level of “important” bacteria in the gut). We understood, as referenced above, it had not been established that increasing levels of certain bacteria in the gut was beneficial to digestive health. However, the implication in the claim, and as it would be understood by consumers, was that it was beneficial to digestive health. We therefore considered the claim was a specific health claim for the purposes of the Code. However, we had not seen any evidence which demonstrated that claim was authorised on the GB NHC Register. We therefore concluded it had breached the Code.
On that point, the ad breached CAP Code (Edition 12) 15.1, and 15.1.1 (Food, food supplements and associated health or nutrition claims).
Action
The ad must not appear again in the form complained of. We told Kellogg Europe Trading Ltd t/a Kellogg’s to ensure they did not to use unauthorised specific health claims and to ensure any authorised specific health claims in their ads were compliant with the conditions of use for those claims, as they appeared in the GB NHC Register. We also told them to ensure they did not make general health claims unless they were accompanied by a relevant, authorised specific health claim that was compliant with its conditions of use.
