Summary of council decision:
Four issues were investigated, all of which were upheld.
Two ads for formula milk manufacturer Kendamil:
a. A post on Kendamil’s LinkedIn account, seen on 7 July 2022, stated “We are incredibly proud to share that our partnership with The White House, FDA and U.S. Department of Health and Human Services (HHS) over the past month has helped us supply millions of bottle feeds of our award-winning Kendamil infant formula to every state across the USA. This latest set of flights under #OperationFlyFormula will deliver a further 200,000 pounds of Kendamil formula to families in need. We are committed to supplying US parents with our high quality baby formula for the long term and are working tirelessly, hand in hand with the FDA, to keep babies fed and shelves stocked. #OperationFlyFormula #kendamil #whitehouse #babyformula #infantformulan”. An image accompanying the post showed a tub of “Kendal first infant milk” and a tub of “Kendal organic first infant milk”.
b. An in-app ad for Kendamil, seen in the Candy Crush game on 6 July 2022, featured a video with several mothers who made a number of claims about Kendamil products, including “I would highly recommend it. It really helped my daughter’s colic and silent reflux. It just worked wonders” and “He’s growing stronger and stronger every day, which makes me proud to be a Kendamum”. Underneath the video was a button labelled “Shop Now”.
The complainants challenged whether:
1. the ads breached the Code because they were marketing communications for infant formula, which were prohibited; and
2. ad (b) also breached the Code because it confused between infant formula and follow-on formula.
The ASA, in relation to ad (b), challenged whether the claims:
3. “He’s growing stronger and stronger every day” complied with the Code; and
4. “It really helped my daughter’s colic and silent reflux. It just worked wonders” stated or implied that a food prevented, treated or cured human disease, which was prohibited by the Code.
1. & 2. Kendal Nutricare Ltd t/a Kendamil said ad (a) had been posted to their professional network on the platform, which included employees, business associates, and partners. In their view the post was not an ad and had not been intended for consumers. The post contained an embedded hyperlink to the whitehouse.gov website, and the product images that appeared in the post had been pulled through from the relevant webpage. They explained the post had not been created to target UK consumers.
Kendamil said ad (b) had been designed by a junior member of their creative team from a set of authentic reviews provided by parents. The ad was not intended for use by the performance marketing agency who ran their Google Display Network (GDN), which determined where the ads were shown. After investigating the matter further with the agency, they determined the ad had been incorrectly approved for testing in ad format. As a test ad it would have only been seen by a small number of consumers.
Kendamil said ad (b) featured only children over the age of six months, whose ages appeared on-screen and had been verified in writing by their parents. The ad also exclusively featured products for children over six months – namely Kendamil’s Stage 2 Follow-on Milk, and Kendamil’s range of weaning cereals – and linked to a web page where only those items could be purchased. Furthermore, the ad did not refer to “infants”, “infancy”, or the first six months of life.
3. & 4. Kendamil said the claim “It really helped my daughter’s colic and silent reflux” in ad (b) was taken from a genuine review, which had not been incentivised. However, the ad had been published in error and was removed immediately following receipt of the complaint and a new procedure had been put in place with their performance marketing agency for additional checks to be performed before any video went live in future, along with limiting team access to the tool which enabled “test” videos to be put “live”.
1. & 2. Upheld
Kendamil believed that ad (a), a post on their LinkedIn account, was not a marketing communication and therefore did not fall within the remit of the Code. The ASA therefore first considered whether the content was in remit. The post had been published on Kendamil’s LinkedIn account – which was accessible to members of the public – and featured information about their partnership with the U.S. HHS. The content of the post focused on Kendamil’s business activities in the USA, and we considered that elements of the post were similar to a press release. However, the post appeared to be targeted at inducing consumers to find out more about the brand and the products shown, rather than at journalists with intent of creating a piece of editorial about the post’s content. We considered it therefore had the effect of promoting the brand, and specifically infant formula, to UK LinkedIn users, and consumers. We also considered the use of the phrase “our award-winning Kendamil infant formula” and the inclusion of two Kendamil infant formula products packaging shots that contributed to that impression. We concluded ad (a) was directly connected with the supply of goods, and that it was therefore a marketing communication within the ASA’s remit.
We next assessed whether the ads had breached the Code. We considered that consumers would understand from ad (a)’s reference to “award-winning infant formula”, and the packaging shots of two infant formula products, that the post was promoting two Kendamil infant formulas. We therefore considered the ad had the effect of marketing infant formula.
Ad (b) featured several mothers with their babies talking about their experiences with Kendamil’s formula milk. We considered that the lack of clarity in the reviews in ad (b) as to whether the participants were referring to infant or follow-on formula meant that it was ambiguous as to whether the ad was referring to infant or follow-on formulas. We considered that two of the babies shown in the ad were not clearly identifiable as being over the age of six months, and noted their ages had not been shown on-screen. We considered that, in the absence of a specific reference to follow-on formula, this contributed to the impression that it was an ad for infant formula. We therefore considered ad (b) had the effect of marketing infant formula, and had also confused between infant and follow-on formulas.
Because the ads had the effect of marketing infant formula, which was prohibited under the Code, and because ad (b) also confused between infant formula and follow-on formula, which was also prohibited under the Code, we concluded that the ads had breached the Code.
On that point, ad (a) breached CAP Code (Edition 12) rule 15.10 (Infant and follow-on formula).
On that point, ad (b) breached CAP Code (Edition 12) rules 15.10 and 15.10.1 (Infant and follow-on formula).
EC Regulation 2016/127 (retained in UK law) stated that nutrition and health claims should not be made by marketers in relation to infant formula. The CAP Code required that references to general benefits of a nutrient or food for overall good health or health-related well-being were acceptable only if accompanied by a specific authorised health claim. Health claims were defined as those that stated, suggested or implied a relationship between a food, drink or ingredient and health.
As referenced at point 1, we considered that ad (b) served the purpose of advertising formula milk, including infant formula. We therefore considered that health claims made in the ad must comply with the CAP Code.
We considered consumers would understand the claim “He’s growing stronger and stronger every day” to mean that Kendamil’s products could aid in the development of babies who consumed them, and was therefore a health claim. Because the ad had the effect of marketing infant formula, and it was not permitted to make health claims in relation to infant formula, the claim breached the Code. Additionally, while it was permitted to make health claims for follow-on formula, the general health claim in the ad had not been accompanied by a relevant, authorised specific health claim, and the claim therefore also breached the Code on that basis.
On that point, ad (b) breached CAP Code (Edition 12) rules 1.10 (Legality), and 15.2 (Food, food supplements and associated health or nutrition claims).
The CAP Code stated that claims which stated or implied a food could prevent, treat or cure human disease were prohibited for foods; that requirement also applied to infant and follow-on formulas. We considered that consumers would understand from the claim “It really helped my daughter’s colic and silent reflux” in ad (b) that Kendamil’s products could treat colic and silent reflux in babies. We therefore considered the ad made disease treatment claims for a food and concluded that it breached the Code.
On that point, ad (b) breached CAP Code (Edition 12) rule 15.6.2 (Food, food supplements and associated health or nutrition claims).
The ads must not appear again in the form complained of. 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; did not make health claims for infant formula, and that general health claims made for follow-on formula should be accompanied by a specific authorised health claim; and did not state or imply that a food could prevent, treat, or cure human disease.