Two Facebook ads for Kendamil, a formula milk manufacturer, seen in May 2020:
a. The ‘About’ section on Kendamil’s Facebook page stated “Kendamil is the only British-made infant formula proudly manufactured in the Lake District. Based on a unique whole-milk based formulation, Kendamil range includes formula products up to 3 years and weaning cereals to help your child thrive”.
b. A paid-for Facebook ad included the caption “The only British Manufacturer of Baby Formula with No Palm Oil, No GMOs, & No Fish Oils”. The ad featured an image of two babies, who appeared to be under six months old, drinking from milk bottles and a link to the Kendamil website with the text “Kendamil Infant Formula A Premium Formula that Retains all the Natural Goodness and Benefits Full Cream Nutrients”.
IssueThe British Specialist Nutrition Association (BSNA) challenged whether the ads breached the Code because they were marketing communications for infant formula, which were prohibited.
ResponseKendal Nutricare Ltd t/a Kendamil said that they had been unaware that there was a distinction between the use of the terms “infant” and “baby”; the terms had been used as basic descriptions of the product. They said the ads had been amended to remove references to “Infant Formula”.
The CAP Code stated that except for those in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers were not the general public, marketing communications for infant formula were prohibited. Additionally, marketing communications must not confuse between infant formula and follow-on formula.
The ASA considered that consumers would understand the references to “infant formula”, in ads (a) and (b), to mean that the ads were promoting Kendamil’s infant formula. We also considered that because the wording “Kendamil range includes formula products up to 3 years” in ad (a) referred generally to formula products for children up to three years old, rather than specifically referring only to follow-on formula, that wording was an implied reference to infant formula. We further considered that the two babies in the image in ad (b) were not clearly identifiable as being over the age of six months and that, in the context of the explicit reference to “Kendamil Infant Formula”, and in the absence of a specific reference to follow-on formula, contributed to the impression that it was an ad for infant formula. We therefore considered that the ads had the effect of marketing infant formula.
We noted Kendamil’s assurance that they had amended the explicit references to “infant formula” in the ads to refer to “baby formula”. However, we considered that in the context of the other wording and image referenced above, it was ambiguous as to whether the ads were referring to infant formula or follow-on formula. We considered the amended ads therefore confused between infant formula and follow-on formula. Because the ads had the effect of marketing infant formula, which was prohibited under the Code, and because the amended versions of the ads confused between infant formula and follow-on formula, which was also prohibited under the Code, we concluded that the ads had breached the Code.
The ads breached CAP Code (Edition 12) rule 15.10 15.10 Except for those in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers are not the general public, marketing communications for infant formula are prohibited. and 15.10.1 15.10.1 Marketing communications must not confuse between infant formula and follow-on formula. (Infant and follow-on formula).
The ads must not appear again in the form complained about, or the amended form referred to by the advertiser. We told Kendal Nutricare Ltd t/a Kendamil to ensure that their future marketing communications did not refer, either implicitly or explicitly, to infant formula and did not confuse between infant formula and follow-on formula.