A TV ad stated "New Special K Multi Grain Porridge - a delicious blend of oats, barley, rye and delicious berries. With 30% less fat than most other porridges". On-screen text read "At least 30% lower than the average fat content of most porridges, as calculated April 2013".
PepsiCo and 14 other complainants challenged whether the comparative nutrition claim "30% less fat than most other porridges" complied with the Code.
Kellogg Marketing and Sales Company (UK) Ltd (Kellogg) stated that the Annex to EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation) allowed marketers to make a reduced fat comparative claim if the product in question was compared to a range of foods of the same category, and where the product was at least 30% lower in fat than the average fat content of the products selected as the basis of the comparison.
They stated that when selecting products as the basis of their comparison they sourced data from a comprehensive database that included sales information for all breakfast cereals available in major UK retailers. They explained that all sachet and traditional porridge products were extracted from the database, as they had a similar composition of grains (mainly oats), with the possible addition of sugars, flavourings and inclusions, such as fruit and nuts, and were designed to be made and eaten with milk. They said the top 75% of those products, in terms of unit sales over the previous year, were then selected to provide a representative range of foods of the same category. They believed selecting products based on unit sales ensured that they adequately represented products that were readily available for a consumer to purchase, and which reflected the products actually eaten by consumers. Kellogg explained that the data showed that the average fat content of the top 75% of porridge products was 7.84%. They asserted that, in accordance with the Regulation, to bear a reduced fat comparative claim, Special K porridge needed to contain at least 30% less fat than products of the same category. Therefore, to bear the claim, the product needed to contain 5.5% fat, or less, which all three variants of Special K porridge did. Kellogg also pointed out than none of the products included in the comparison had a fat content of 5.5% or less. Kellogg provided the data which they had used as the basis of the claim.
Kellogg stated that the ad drew a comparison between the Red Berry version of the product and most other porridges. They believed that the voice-over and super clearly explained the basis of the comparison by stating that the product had at least 30% less fat than the average fat content of most porridge products on the market.
Kellogg explained that the claim had been calculated when the product and comparator products were dry, rather than in their prepared state. They said they had done so because consumers prepared porridge in different ways, including differing portion sizes, and using milk or water. They highlighted that different manufacturers had different serving suggestions. and that some did not provide explicit instructions regarding the amount of product or liquid to use. A comparison, therefore, of the products when prepared, in accordance with each manufacturers' instructions, would be very difficult to carry out. In addition, whilst they acknowledged that the product was designed to be made and eaten with milk, and that was the way they suggested on the packet that it was eaten, that did not mean that it could not be, and was not, eaten without milk or water. They said that the product was not a dehydrated food to which water needed to be added to make it fit for consumption. They also highlighted that the main ingredient was rolled oats mixed with some barley and rye and that those ingredients could be eaten without milk or water, as could their porridge. They also highlighted that this type of grain mix was commonly included in mueslis, granolas and cereal bars, all of which could be eaten dry. Similarly, they provided links to blogs, websites and recipes which promoted the consumption of oats eaten 'raw' or uncooked. They asserted that it was possible to consume the product as sold and therefore it was acceptable to make the comparison with other porridge products on that basis.
Clearcast said the Department of Health's (DH) guidance to compliance with the Regulation stated that reduced claims should be based on a comparison with a range of similar products on the market and that the comparison could be expressed as either a percentage or an absolute value, and that an average could be used. Clearcast believed the comparison was in line with the Regulation as the products being compared were all the same − in that they were all porridge − and therefore in the same category. They also said Kellogg had provided a comprehensive substantiation document which set out the basis of the comparison, and having sought a consultant's view on the claim, she was content provided the ad made clear that the comparison was based on the average fat content of other porridge products on the market. They believed that the on-screen text that coincided with the voice-over made that sufficiently clear.
They also noted that the comparison was based on 100 g of dry product and believed that was fair, as both the kind of liquid, for example, skimmed milk, full-fat milk or water, and the amount used to make the product, would vary from consumer to consumer.
The ASA noted that according to the Regulation, which was reflected in the BCAP Code, only nutrition claims listed in the Annex of the Regulation were permitted in ads promoting foods and that marketers must ensure that they met the conditions of use associated with the claims in question. In addition, the BCAP Code required comparative nutrition claims to compare the difference in the claimed nutrient to a range of foods of the same category and that comparator products, in this case other porridges, must not have a composition that would allow them to bear a nutrition claim.
Having reviewed the data provided we were content that the comparator products selected as the basis of the comparison were in the same category of food and were therefore "alternatives for consumption", and we understood that none of the products listed could bear the claim "30% less fat than ...". We noted, however, that whilst the 36 comparator products represented the top 75% of market share, the total number of porridge products in the database was 307. We also noted that the 36 "top sellers" included a number of duplicate products of different weights, or with varying toppings. In particular, we noted that 12 of the 36 products were owned by one brand. Therefore, whilst we understood that the products selected represented the most popular products in terms of unit sales, we were concerned that we had not seen evidence to show that they were representative of the range of fat content within the food category "porridge", more generally. In addition, we were concerned that the products selected on the basis of market share could lead to porridges with above average fat contents being over-represented.
In addition, we noted that Article 5 of the Regulation stated "Nutrition and health claims shall refer to the food ready for consumption in accordance with the manufacturer's instructions" and that the DH's guidance to compliance with the Regulation stated, "The Regulation applies to the food ready for consumption in accordance with manufacturers' instructions (Article 5). In our opinion this should only apply where the food could not or should not be consumed otherwise. For example, the requirements of the Regulation would apply to a dehydrated product, only after water has been added in accordance with the instructions. Where the product can be consumed without following the manufacturer's instructions, the requirements would apply to the food as sold. For example breakfast cereal does not have to be eaten with milk and therefore the claim should apply to the cereal as sold and not rely on milk being added". We noted, however, that the claim was based on a comparison between 100 g of the dry product and 100 g of dry competitor products. Whilst we understood that porridge was generally consumed at breakfast time, and for many consumers was an alternative for cereal, we understood that although dry oats, barley and rye could be consumed as sold, they could not be consumed as "porridge" without the addition of a liquid. We also noted Kellogg's comment that sachet and traditional porridges were designed to be made and eaten with milk, and that the ad clearly showed prepared porridge throughout as opposed to dry oats. We therefore considered that most consumers would believe the claim related to the product when prepared. We also understood that the addition of milk to the dry Kellogg and comparator products would result in a reduction in the percentage difference of fat between the products, and that depending on the amount of dry product, and the type and amount of milk used, that change could result in the "30% less fat" claim no longer being accurate. For those reasons we considered that the nutritional information used as the basis of the claim should have related to the product once it had been prepared with milk. Therefore, we considered that the claim did not comply with the Regulation as it was based on the nutritional value of the product, and competitor products, when they were unprepared and unable to be consumed as porridge.
Because we had not seen evidence that the comparator products selected were representative of the category, and the comparative claim was based on the fat content of Special K porridge and the comparator products when they were dry and therefore cannot be consumed as porridge, we concluded that the comparative nutrition claim 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. 13.4.1 13.4.1 Nutrition claims must comply with the criteria in the EU Register:
www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm 13.5.1 13.5.1 Comparative nutrition claims must compare the difference in the claimed nutrient to a range of foods of the same category which do not have the composition that allows them to bear a nutrition claim and 13.5.3 13.5.3 The difference in the quantity of a nutrient or energy value must be stated in the advertisement and must relate to the same quantity of food.
The European Commission has produced guidance on food categories that advertising industry stakeholders might find useful:
http://ec.europa.eu/food/food/labellingnutrition/claims/guidance_claim_14-12-07.pdf (Food, food supplements and associated health or nutrition claims).
The ad must not appear again in its current form. We told Kellogg Marketing and Sales Company (UK) Ltd to ensure that comparative nutrition claims complied with the Code in future.