Background
Three issues were investigated of which one was Upheld and two were Not Upheld.
Ad description
A website advertising a vegetarian food range, viewed on 4 October 2011, said "Exciting new fish range in stores now. We're doubly excited this month. Not only can we announce our new fish range, but we might also put an endangered meal back on the menu. You know what they say, "Plenty more fish in the sea" Or are there? Popular fish like cod and tuna are endangered by overfishing. And sustainable alternatives, like pacific cod, are a bit heavy on the food miles. So, never ones to shy away from a global challenge, Quorn™ brings you fish, but without the fish-in".
Further text stated "Tuck into classics including Fish-less Fingers and Tuna Style and Sweetcorn Crispbakes. They're full of flavour, a source of protein, and the Fish-less Fingers are enriched with healthy omega 3. Oh, and all with 0% fish. The ultimate meal is back. Which brings us to that endangered treat: the fish finger sandwich. Now, reinstated as comfort food with a conscience, bring on the Fish-less Finger butty".
Issue
The Seafish Industry Authority challenged whether:
1. the claim that cod and tuna were endangered species was misleading and could be substantiated;
2. the ad misleadingly implied Quorn's fish range offered the same benefits of omega-3 found in oily fish; and
3. the ad misleadingly implied Quorn's fish range offered the same general health benefits as fish.
Response
1. Marlow Foods Ltd (Marlow Foods) said their intention in the ad was to highlight concerns about overfishing of threatened species. They said not all species of cod and tuna were classed as endangered by the International Union for Conservation of Nature (IUCN), but some were classed as vulnerable or endangered. They also said there was not a globally recognised definition of "endangered", and that countries and organisations differ in their classifications. They believed the perception of the word "endangered" would be different depending on if the person viewing it was a consumer, or a person involved in the fish industry. They did not consider the ad was misleading, as they did not believe that a consumer would take a different transactional decision based on the claim. However, they said the ad had been removed from their website.
2. Marlow Foods said the omega-3 contained in their Fish-less Fingers was in the form of DHA (docosahexaeonic acid), which was a long chain form of omega-3 which was also found in fish. They provided details of the nutritional profile of the vegetarian omega-3 algaoil blend which they used in their product. They said the amount of omega-3 fatty acids within their product met the requirements to use the nutritional claim "Source of Omega-3 fatty acids". They said the ad did not refer to oily fish, only to "fish", and did not believe the ad misleadingly implied Quorn's fish range offered the same benefits of omega-3 found in oily fish.
3. Marlow Foods did not believe the ad misleadingly implied that their fish range offered the same general health benefits as fish. They said that, due to the nature of the products, it was unavoidable that consumers would compare their "fish range" to fish, but they had not made any direct comparison with the health benefits of fish. They believed the description of the products as "full of flavour, a source of protein, and .. enriched with healthy omega 3" was accurate, and did not mislead about the nutritional and health benefits of their products. They said they were authorised to make the nutritional claims relating to omega-3 and protein.
Assessment
1. Upheld
The ASA noted that evidence supplied by Marlow Foods demonstrated that not all species of cod and tuna were considered endangered by the IUCN. We acknowledged that there was no globally agreed definition of "endangered", but noted that IUCN were considered a global authority on the conservation status of species. We considered the claim "popular fish like cod and tuna are endangered by overfishing" implied that all species of cod and tuna were endangered, and noted Marlow Foods had not provided evidence this was the case. We considered that for some consumers the conservation status of species could be an important factor in their purchasing decisions. We therefore concluded that the claim was misleading.
On this point the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising) and
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation).
2. Not upheld
We noted Marlow Foods provided us with evidence that the omega-3 used in their product was a kind of omega-3 found also in fish. We also noted it was present in sufficient quantities to use the nutritional claim "Source of Omega-3 fatty acids". We also noted the ad did not refer to "oily fish". We considered consumers would be aware that omega-3 could be obtained from a variety of sources, and that there might be differences between the health benefits of those sources. We did not consider the ad implied that the product offered the same benefits of omega-3 found in oily fish, and therefore concluded that the ad was not misleading.
On this point we investigated the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) and
15.1
15.1
Marketing communications 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. Claims must be presented clearly and without exaggeration.
(Food, food supplements and associated health or nutrition claims) but did not find it in breach.
3. Not upheld
We noted Marlow Foods had provided evidence the health claims they made for their products were accurate, and that they were authorised to make the nutritional claims. We considered that, although the ad did not directly compare the health benefits of Quorn's "fish range" to fish, consumers were likely to consider this when looking at the ad. However, we did not consider that the ad claimed or implied that the products offered the same general health benefits as fish. We therefore concluded the ad was not misleading.
On this point we investigated the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.7
3.7
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
(Substantiation),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) and
15.1
15.1
Marketing communications 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. Claims must be presented clearly and without exaggeration.
(Food, food supplements and associated health or nutrition claims) but did not find it in breach.
Action
We told Marlow foods to amend the claim "popular fish like cod and tuna are endangered by overfishing" to make clear that not all species of cod and tuna were endangered. We noted they had removed the ad from their website.
