A TV ad for Kellogg’s, seen on 5 April 2018, promoted their Special K cereals range. At the beginning of the ad a visual of a pregnant woman swimming was accompanied by large on-screen text which stated “made with Folic Acid feeding development”. Small text at the bottom of the screen stated “A serving of Special K cereals contains folic acid contributing to maternal tissue growth during pregnancy”.
The complainant challenged the claim “A serving of Special K cereals contains folic acid contributing to maternal tissue growth during pregnancy”, which was required to comply with the requirements of Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), as reflected in the CAP Code.
Kellogg Marketing and Sales Company (UK) Ltd t/a Kellogg’s said that because they were consumed daily, breakfast cereals were an important way of ensuring that women of childbearing age maintained folic acid levels and that folic acid consumption from cereals contributed 9–11% of the daily intake for women aged 19 to 64 years of age. Kellogg’s provided Special K nutritional information which showed that a 30g serving of the cereal provided 100µg of folic acid, which was 50% of the Nutrient Reference Value (NRV).
Kellogg’s said that the claim referred to the nutrient Folate for which there was an authorised health claim on the EU Register of Nutrition and Health Claims Made on Foods (the EU Register). They said that it was clear from the guidance provided by the Committee of Advertising Practice (CAP) and the Department of Health that flexibility was permitted in the wording of health claims where the change had been made to aid consumer understanding. Kellogg’s considered that the term folic acid was a commonly known and widely understood term for a nutrient that was important for pregnant women and women trying to conceive and that folic acid was a synthetic form of folate that was more easily absorbed by the body than the natural form.
Kellogg’s provided several references to guidance produced by the Department of Health and the NHS, and to European Food Safety Authority (EFSA) Opinions. Kellogg’s said that NHS messaging, when listing foods which were good sources of folic acid, combined foods with naturally occurring folate and cereals fortified with folic acid without making any differentiation between them. They also said there was widespread use of the term “folic acid” on the labels of packaged products that were a source of folate. This demonstrated that where folate existed in a product it was routinely described as folic acid on its label, which was the use permitted in accordance with applicable labelling law. Kellogg’s said that demonstrated that for the purposes of consumer understanding, the NHS preferred the term folic acid to refer both to folate and folic acid and supported the assertion that the term folic acid was the term understood by the public.
Kellogg’s said that while the reduction in the risk of NTDs (neural tube defects) in foetuses may be the first connection made by consumers when the term folic acid was used, it was not the only connection. They said that it was well established and scientifically proven that the role of folic acid extended beyond the reduction in the risk of NTDs in foetuses pre-conception and for 12 weeks afterwards, and was relevant for maternal tissue growth which continued throughout pregnancy. They said that when a woman was over 12 weeks pregnant, she would no longer be taking folic acid to reduce the risk of NTDs, but to assist maternal tissue growth. Kellogg’s quoted from an EFSA Opinion which stated that folate was needed during pregnancy for increasing the mother’s red blood cell mass, for the formation of the placenta and for the growth of the foetus, the uterus, breasts, and other maternal tissues owing to its role in cell division. It added that a cause and effect relationship had been established between the dietary intake of folate and the normal maternal tissue growth during pregnancy. Kellogg’s said that foetal development and maternal tissue growth were intrinsically linked and that the placenta and the uterus were types of maternal tissue, on which the development of the foetus was dependent. They said that the image of a woman who was clearly more than 12 weeks pregnant was wholly responsible to support the authorised health claim “folic acid contributes to maternal tissue growth during pregnancy” and to avoid consumers being misled into thinking that a typical serving of Special K would replace their folic acid supplemental needs for the reduction of NTDs.
Clearcast echoed Kellogg’s comments that authorised health claims could be adapted for use in advertising, provided the advertising claim had the same meaning for the consumer as the authorised claim. They said the word folate would not be clearly understood by the average consumer as it was more commonly known as folic acid especially in food products. On that basis they believed that the claim had the same meaning as the authorised health claim and would be more easily understood by the consumer.
The BCAP Code defined a health claim as any claim that stated, suggested or implied that a relationship existed between a food category, a food or one of its constituents and health. 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. The BCAP Code stated that health claims must not give a misleading impression of the nutrition or health benefits of the product as whole, and that claims must be presented clearly and without exaggeration.
The ASA understood that the authorised health claim to which the advertising claim referred was “Folate contributes to maternal tissue growth during pregnancy” and we accepted that the product met the conditions of use associated with the authorised claim. We therefore considered whether the health claim in the ad had retained the meaning of the authorised claim.
We understood that folic acid was the man-made form of folate, which was found naturally in food, and we acknowledged that the term “folic acid” was more widely used by consumers and healthcare professionals than “folate”. Given that the evidence we had seen demonstrated that the terms folate and folic acid were used interchangeably, we considered it was in principle acceptable to amend the wording of the authorised claim to refer to folic acid rather than folate.
We sought the view of the Department of Health and Social Care (DHSC) who, in consultation with colleagues in Public Health England, said that public health promotion concentrated on folic acid supplements before and in the early stages of pregnancy to reduce the risk of NTDs in foetuses. They believed that was likely to be the first connection consumers made when the term “folic acid” was used. DHSC said that little, if any, use was made of the terms “folate” and “maternal tissue growth”, although in the context of the authorised claim, they could see maternal tissue growth as implying foetal tissue growth. However, they said that intake of folic acid from typical consumption levels of the product was likely to make it a ‘source’ of folic acid, but intake at that level would not be at a level sufficient to substitute for the recommended supplementation.
We considered that “folic acid” was widely understood to be a supplement or ingredient in food which had benefits in terms of contributing to foetal health, specifically reducing the risk of birth defects such as NTDs when consumed by women who were pregnant or trying to conceive. We were therefore concerned that consumers would understand that the claim “made with folic acid feeding development”, which featured prominently accompanied by a visual of a heavily pregnant woman swimming, related to foetal development. We considered that the qualification regarding maternal tissue growth, which reflected the wording of the authorised claim, was not sufficient to alter that impression as it appeared in much smaller text at the bottom of the screen. Neither did we consider that because the ad featured a woman who was clearly in the advanced stages of pregnancy, consumers would necessarily identify that the ad was referring to folic acid intake to assist maternal tissue growth after the first 12 weeks of pregnancy.
We understood there was an authorised claim on the EU Register for folic acid which related to the reduction of risk of NTDs in foetuses, and which could be used for foods which provided at least 400 µg of folic acid per daily portion. However, while Special K was a source of folate (folic acid), a typical serving did not provide folic acid in that quantity and it could not therefore be claimed that consumption of Special K provided sufficient folic acid to reduce the risk of NTDs in foetuses.
We considered that the amendment to the wording of the authorised health claim from “folate” to “folic acid” was in principle acceptable, and we accepted that folic acid played a role throughout pregnancy. However, we considered that the key connection consumers would make with folic acid was its role in reducing the risk of birth defects such as NTDs, and we considered that connection was reinforced by the prominent claims and visuals of the ad which implied that the cereal provided sufficient quantities of folic acid for pregnant women or those who were trying to conceive to reduce the risk of NTDs in foetuses. We concluded that as a result, the claim “made with folic acid feeding development”, in the context of the ad, did not retain the meaning of the authorised health claim and exaggerated the health benefits of the product, and that the ad was in breach of the Code.
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 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 and nutrition claims).
The ad must not appear again in its current form. We told Kellogg Marketing and Sales Company (UK) Ltd to ensure that they retained the meaning of and did not exaggerate authorised health claims in future.