Summary of Council decision:
Two issues were investigated, of which one was Upheld and one Not upheld.
An ad on ASDA's own brand milk labels, for Nesquik Hot Chocolate, seen in March 2015, showed the price of the Nesquik product at ASDA and featured an image of the Nesquik bunny stirring a cup of hot chocolate. Text included "For a great start to the day! … Nutri-Start Vit D Zinc Iron complementing milk". Small print stated “Available in selected stores only. While stocks last. Offer available from 12 February - 4 March”.
The Children's Food Campaign (Sustain), challenged whether:
1. the ad, in particular the child-friendly equity brand character and the claim "For a great start to the day", encouraged poor nutritional habits in children.
2. the promotional offer was irresponsible because it ran during a period when ASDA’s own brand milk was promoted with the “Sugar Swaps change4life” logo on the mySupermarket website.
1. Nestlé UK Ltd said they did not believe the ad encouraged poor nutritional habits in children. The Nesquik bunny was not the main focus of the ad and it had in any case been carefully designed to convey a physically active, energetic character who could promote a healthy lifestyle. They said the label was targeted at adults who were shopping for their family, rather than at children. The ad’s positioning on the label meant the majority, if not all of it, could not be seen when the milk sat on the supermarket shelf. It was, therefore, unlikely that children would have been exposed to it before it was purchased. They acknowledged that the brand character might appeal to children, but said it was used to promote the product as part of a balanced diet.
They said the claim “For a great start to the day!” did not encourage excessive consumption of the product, or any other poor nutritional habit, and suggested the positioning of the ad on a family-sized bottle of milk made it clear that the product should be consumed over a number of days, rather than in excess. They said the claim “For a great start to the day!” highlighted Nesquik as a potential breakfast option for the whole family, to be considered alongside other breakfast foods. This did not imply it was the only option, that it should be exclusive to breakfast, consumed every day, or multiple times a week, or that more than one serving should be consumed in a day. However, they said that provided an individual’s sugar intake from other sources was moderated, Nesquik could provide an important source of calcium and other nutrients for children, particularly those who might not like the taste of plain milk. The text “Nutri-Start” referred to the presence of vital nutrients in the product, which were referred to in the ad, and “complementing milk” was depicted as part of the same jigsaw puzzle as both of those elements, highlighting that the product complemented milk in terms of taste and nutrition.
They said EU Pledge (a voluntary industry initiative), of which Nestlé was a member, had established Nesquik as a ‘better for you’ option. They explained the ad was designed to present Nesquik as a breakfast product, following research that showed milkshakes were primarily consumed at breakfast time. They said the claim reflected the enjoyment of having a milk drink at breakfast time, rather than linking the product to health or well-being, and could be understood as a reference to taste, refreshment or enjoyable activity. They said that impression was enhanced by the fact the Nesquik bunny was smiling in anticipation of drinking the hot chocolate. They believed the claim “For a great start to the day!” was not a general health claim, because they considered it did not imply any relationship between the benefits of consuming the product and health or health-related well-being. It instead suggested the product could be consumed at the start of the day and described general enjoyment associated with consuming the product, rather than implying any health benefit.
They explained the guideline for preparing the drink was three teaspoons of Nesquik for 200 ml of semi-skimmed milk. Nestlé provided details of the percentages of nutrients contained in a typical Nesquik milk drink in comparison with the UK reference intake (RI) for children four to six and seven to ten years of age. They pointed out that a serving of Nesquik chocolate provided 39% of protein and 56% of the RI for calcium for children aged four to six years. They also provided detailed information about the benefits of drinking milk, including that a 200 ml glass of semi-skimmed milk provided 182 ml of water and 7 g of protein, which were important for hydration and growth respectively, and was also rich in calcium, important for growth and mineralisation of the bone. They provided a quote from the British Dietetic Association, which recommended semi-skimmed milk and said that children should aim for three servings of calcium-rich food a day.
They said a glass of Nesquik was classified as green for all nutrients, with the exception of sugars, under the UK government’s ‘traffic light’ coding system for food packaging. The sugars in Nesquik were classified as red under that system due to the portion being greater than 150 ml. They said flavoured milk did contain added sugars and acknowledged that a 200 ml drink made with three teaspoons of Nestlé hot chocolate contained 20.2 g of sugars, which was considered ‘high’ under the ‘traffic light’ scheme, but said that was clearly stated on the product’s packaging along with other nutrition information. It was also important to consider a product’s nutritional content as a whole: for example, 150 ml of fresh orange juice contained around 15 g of sugars, but was nevertheless recognised as part of the ‘five a day’. They said the amount of sugar was not excessive in light of the RI for sugar, with over half the sugar in the prepared drink coming from lactose, which was found naturally in milk. That meant a serving of milk would be classed as ‘amber’ before the Nesquik was added. However, the product also included nutrients additional to those in milk, such as vitamins C and D, zinc and iron. Nestlé pointed out that when making a Nesquik drink, consumers were combining a product rich in vitamin D (a typical serving of Nesquik provided 30% of the RI of vitamin D) with a product rich in calcium. They explained that vitamin D was required for calcium absorption and said the product could therefore play an important role if vitamin D was deficient in the diet.
ASDA Stores Ltd said they had no part in creating or approving the ad, which had been provided directly to ASDA’s milk supplier by Nestlé.
2. Nestlé reiterated that they did not consider the ad encouraged poor nutritional habits in children. They explained that consumers who saw the promotional label would be able to read the full nutritional information on the Nesquik hot chocolate product before they decided to purchase it, and after, and there was nothing to imply the product was low in sugar, or that was likely to mislead consumers about the product’s nutritional value. They explained that the ‘sugar swaps change4life’ logo was used at the request of Public Health England, and Nestlé was not responsible for its appearance.
ASDA explained the ‘sugar swaps change4life’ logo was used at the request of the media agency for Public Health England, who had paid for the appearance of the logo on the mySupermarket website and had selected which products to feature. Public Health England had given final approval and ASDA had not been asked to approve it, or provide information on their products. They had not been involved in the process.
The ASA considered the claim “For a great start to the day!” was in itself ambiguous and might, for example, be interpreted as referring to the enjoyment of the product. However, in the context of the ad, we considered it suggested the product had a general benefit to health, in particular given the text “Nutri-Start”, the references to the nutritional content of the product (“Vit D”, “Zinc” and “Iron”) and also “complementing milk”. In that context, we therefore considered the claim “For a great start to the day!” was likely to be understood as a reference to a general benefit of the product for overall good health or health-related well-being.
We noted that according to EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods, which was reflected in the CAP Code (which stated that references to food also applied to drink products), 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. The ad did not include any specific authorised health claims. Because general health claims were acceptable only if accompanied by a relevant specific authorised health claim, but that was not the case, we concluded that the ad breached the Code.
Notwithstanding the concerns set out above, we acknowledged that CAP Code rule 15.15 stated that while licensed characters must not be included in ads targeted through their content directly at pre- or primary school children, equity brand characters “may be used by advertisers to sell the products they were designed to sell”. However, while we noted the ad did not necessarily suggest the product should be consumed every day, we considered the combination of the cartoon rabbit, which we considered was likely to appeal to children, and the claim “For a great start to the day”, a general health claim in the context in which it appeared, as well as “Nutri-Start Vit D, Zinc and Iron complementing milk”, suggested Nesquik hot chocolate was suitable as a regular breakfast option for children. While we understood that semi-skimmed milk alone contained 9.6 g of sugar per 200 ml serving, which allowed for an orange ‘traffic light’ label, we also understood that a 200 ml serving of Nesquik hot chocolate contained 20.3 g of sugar. That was high sugar content according to government guidelines for drinks (which stated that sugar content of over 13.5 g per portion, if the portion was over 150 ml, was high). Because the product was high in added sugar, we considered that the suggestion that Nesquik was a suitable regular breakfast option for children encouraged poor nutritional habits in children and that the ad therefore should not have appeared at all.
On that point, the ad breached CAP Code (Edition 12) rules 15.2 15.2 References to general benefits of a nutrient or food for overall good health or health-related well-being are acceptable only if accompanied by a specific authorised health claim. and 15.11 15.11 Marketing communications must not condone or encourage poor nutritional habits or an unhealthy lifestyle in children. (Food, food supplements and associated health or nutrition claims).
2. Not upheld
Notwithstanding the concerns set out above, while the ‘sugar swaps change4life’ logo was shown alongside ASDA milk on the mySupermarket website at the same time as the ad appeared, we considered most consumers were unlikely to have seen both the ad and the separate website. We also noted that the milk products pictured on the website did not show the Nesquik ad on the labels. Nevertheless, we considered those consumers who did see both ads were likely to understand that the ‘sugar swaps’ initiative related to the milk itself, rather than to the Nesquik product that was promoted on the milk labels. For that reason, we concluded that the ad was not irresponsible.
On that point, we investigated the ad under CAP Code (Edition 12) rule 15.13 15.13 Marketing communications featuring a promotional offer must be prepared with a due sense of responsibility. (Food, food supplements and associated health or nutrition claims), but did not find it in breach.
The ad must not appear in its current form. We told Nestlé UK Ltd and ASDA Stores Ltd to ensure future marketing communications did not make general health claims in future unless they were accompanied by a related specific authorised claim. We also told them to ensure future ads did not encourage poor nutritional habits in children.