An email sent from Mothercare in December 2016 promoting Nestlé’s SMA PRO Follow-On Milk product featured text that stated “mothercare welcome to the club … SMA PRO Follow-On Milk … The first 1000 days of your baby’s life are very important for their future. This marks the time from the start of pregnancy to a child’s second birthday. What and how babies are fed will determine a big part of their future health, helping set the foundations for life. That’s why over the past 90 years, SMA Nutrition has invested in early life nutrition. Inspired by the specific nutritional needs of your little one as they may make the move on to new food and tastes. SMA Pro Follow-on Milk represents one of our most advanced follow-on formula yet …”.
The ad also featured an image of the product with the text “FOLLOW-ON MILK” on its packaging.
Baby Milk Action challenged whether the ad breached the Code, because it had confused infant formula and follow-on formula.
Mothercare UK Ltd stated that they were aware that legislation prevented them from advertising infant formula for babies under six months old, and that this had been incorporated into their “Feeding Policy”. The policy outlined specific rules they needed to comply with when promoting follow-on formula, including that such ads must be signed-off by their in-house parenting consultant.
Mothercare believed that the ad made it very clear that it was promoting follow-on milk and that it was unlikely to confuse consumers into believing that it was an ad for infant formula. They stated that “Follow-on milk" was included in the name of the advertised product – “SMA PRO Follow-on Milk". Furthermore, it was shown in the ad’s header in large font, alongside equally prominent words stating "Our most advanced follow-on formula yet".
Mothercare stated that the text “SMA PRO Follow-on Milk” was also shown prominently in large emboldened text in the middle of the ad, as the header to the second half of the email which featured nutritional claims. Furthermore, two images of the product’s packaging were shown which also included the text “SMA PRO FOLLOW-ON MILK”.
Mothercare stated that numerous references to "follow-on milk" were made throughout the ad’s body copy. In total, the words "follow-on milk" appeared five times within the ad and nine times when including images of the product. Whilst there was a single reference to "formula", it was however shown immediately after the text “SMA PRO Follow-on Milk" to eliminate any possibility of ambiguity.
Regarding the text “The first 1000 days of your baby’s life are very important for their future”, Mothercare believed that along with the ad’s references to “follow-on milk” and “SMA PRO Follow-on Milk”, which first appeared at the top of the email, consumers would understand that it related to SMA’s research on early development in the context of follow-on milk.
Mothercare stated that the image of the toddler showed that he was clearly older than six months, which further clarified to consumers that the ad was promoting follow-on milk and not infant formula.
Mothercare stated that they had only emailed the ad to customers on their database who had children over 12 months old who were therefore unlikely to have been confused into believing that it was an ad for infant formula.
Mothercare had consulted with their Primary Authority at Hertfordshire County Council (HCC) after receiving the complaint. HCC believed it was clear that Mothercare had taken the appropriate steps to avoid a breach in legislation.
Nestle UK Ltd stated that they had an extensive approval procedure for all external materials, including advertising and labelling, in order to help ensure full compliance with the legislation.
Nestle UK believed that the ad was clearly promoting SMA PRO Follow-on Milk, because the appearance of the tin was sufficiently distinct from that of SMA PRO First Infant Milk. They stated that not only was SMA PRO Follow-on Milk’s name stated in the enlarged font size in two headings, the tin itself clearly displayed the words “Follow-on Milk”, which was in line with long standing industry practice for stage numbering of follow-on milk.
Nestle UK ensured that the baby shown in the ad was well over six months of age, which they believed was clearly demonstrated by the fact that he was, with the help of a parent, able to walk. Furthermore, the ad included an important notice-statement, which explained to consumers that SMA PRO Follow-on Milk was not intended to replace breastfeeding, and was only suitable from six months as part of a varied weaning diet.
Nestle UK also explained that the email was only sent to parents with children of the appropriate age for the product (i.e. over 6 months of age).
Nestle UK stated that the importance of providing appropriate nutrition during the first 1000 days (from conception through to two years of age) was accepted by child health experts to be the most significant in a child’s development. Nestle UK believed that this was clearly referenced in the ad and was in line with current medical and nutritional thinking. The 1000-day reference provided relevant context to the nourishment that SMA PRO Follow-on Milk would provide as part of a varied weaning diet.
The ASA noted that the top of the ad featured a prominent blue banner with the bold header “SMA PRO Follow-On Milk”, and directly below that was a large image of the product with the text “FOLLOW-ON MILK” on its packaging. We considered that consumers would understand from this that the ad was promoting follow-on milk.
The ad then featured the text “The first 1000 days of your baby’s life are very important for their future. This marks the time from the start of pregnancy to a child’s second birthday. What and how babies are fed will determine a big part of their future health, helping set the foundations for life”. We considered that consumers would interpret this to mean that the type of food consumed by babies to when they reached the age of two years played a vital role in their future health. Whilst we noted that there was reference to the importance of what and how “babies” were fed, given that the ad made clear from the outset that it was promoting follow-on milk, we considered consumers would understand that the text was addressing the option of follow-on milk for babies of the appropriate age, which we understood was from six months onwards. Furthermore, we considered that the image of the toddler adjacent to the text further clarified that the ad was promoting follow-on milk.
Therefore, we concluded that the ad did not advertise infant formula or confuse between infant formula and follow-on formula.
We investigated the ad under CAP Code (Edition 12) rules 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), but did not find it in breach.
No further action necessary.