The ad under investigation appeared in May 2021, and we therefore assessed it under the Code interpreted in the light of changes in the background law resulting from the UK’s exit from the EU, as per CAP/BCAP’s statement on EU exit dated 22 December 2020.
Summary of Council decision:
Three issues were investigated, two of which were Upheld. The other was informally resolved after the advertiser agreed to amend their advertising. The fourth complaint related only to the informally-resolved issue.
A podcast ad, for Cow&Gate Baby Club, was heard in May 2021 before episodes of the podcast ‘Sh**ged, Married, Annoyed’ by Chris and Rosie Ramsey. The advert was a conversation between Chris and Rosie that began with Chris saying, “Ok Rosie, so I don’t think our dear listeners have heard enough about our experience with formula milk just yet. So how about for this week’s sponsor we ramp it up a bit and provide them with some quick fire education … Right let’s go then. What’s this week’s sponsor?” Rosie said, “This week’s sponsor is C&G Baby Club.” Chris said, “And what do I need to know?” Rosie said “You need to know that there’s a fast growing trend around the world for formula milks made with A2 protein milk and the trend is coming to the UK”. Chris said, “Fantastic sounds science-y. What is A2 protein milk and what makes it so special?” Rosie replied, “Here comes the science. You know regular cow’s milk, well, it’s not that. Regular cow’s milk contains two key types of protein called A1 and A2 beta casein. A2 protein milk comes from special cows that naturally produce only the A2 beta casein. It’s a simple as that.” Chris then asked, “What’s the difference?”, to which Rosie replied, “Well, it appears to all be in the digestion, Christopher. Initial studies on adults show that A2 protein milk may be easier to digest than regular cow’s milk. This might sound new to you, but C&G Baby Club shared that thousands of years ago all cows naturally produced only A2 protein milk.”
The presenters spoke further about the credit of A2 milk protein going to the cows. Rosie then said, “To learn more about A2 protein milk and why it may be easier to digest, visit cgbabyclub.co.uk.” Chris closed the advert by saying, “Breast feeding is best. Eat a balanced diet when breastfeeding. Reversing the decision not to breastfeed is difficult. Consider the social and financial implications of using infant formula. Improper use may make baby ill. Follow manufacturer instructions for use. Talk to a health care professional.”
1. Three complainants challenged whether the ad breached the Code because it confused between infant formula and follow-on formula.
2. The ASA challenged whether the claim “A2 protein milk may be easier to digest than regular cow’s milk” was an authorised health claim.
1. Nutricia Ltd t/a Cow & Gate (Nutricia) said the ad was for the C&G baby club, rather than the Cow and Gate brand or any products within that brand range. As there were no references to the Cow and Gate brand or products the ad could not confuse between infant formula and follow-on formula.
They said the C&G baby club provided information and education to parents covering pregnancy and the first few years of life. The intention of the ad was to share educational information on infant feeding and A2 protein milk. In their view neither the legislation about advertising infant formula and follow-on formula nor the CAP Code included provisions in relation to the advertising of baby clubs or unbranded and non-product-related ads, and allowed for the sharing of information on infant formula and feeding in general. In their view the ad adhered to the Infant Nutrition Industry Code which stated that emails to parents or carers of healthy infants as part of a company baby or parenting club should not include the product name of an infant formula, or the product name of follow-on formula, unless the recipient had advised that their child was at least six months of age.
They provided information about their approach to delineating ads for the baby club and C&G products in different online media. They highlighted that when consumers clicked-through to buy Cow & Gate products from the C&G baby club page, they were presented with a warning about the use of infant formula. They said that because the ad had the purpose of promoting the baby club and not the C&G brand or products, the generic term of “formula milks” was used to refer to the baby milk category because it was a widely used term that was easily understood by the general public. It was not intended to conflate follow-on milk with infant formula.
2. Nutricia said the focus of the ad was to discuss the emerging trend for formula milks made with A2 protein milk. They referred to two studies that they said substantiated the claim “A2 protein milk may be easier to digest than regular cow’s milk”. They said that in their view, because the purpose of the ad was to promote the C&G baby club and not the Cow and Gate brand or products, the claim made did not fall under the requirements of the CAP Code relating to health claims made about foods.
Nutricia said they strive to be a responsible and compliant advertiser. They were taking steps to reduce the likelihood of this issue happening again, including improved training and guidelines. This would strengthen the way they review materials, including podcast advert transcripts, from legal and regulatory perspectives.
On both issues, Acast, responding on behalf of Chris and Rosie Ramsey, said they had nothing further to add to Nutricia’s response.
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 ad began by referencing the C&G baby club. However, the main content of the ad was the discussion of formula milks generally and A2 protein milk formula specifically. We therefore considered that while the ad was for the C&G baby club, it also served the purpose of advertising formula milk.
We acknowledged that Nutricia said they used the term “formula milks” as a generic term when referring to the baby milk category. We considered that consumers would likely understand the references to ‘formula’ to mean they were talking about both infant formula and follow-on formula. The podcast host also used the term “infant formula” towards the end of the ad, which we considered reinforced the impression that the ad was referring to infant formula or to both infant and follow-on formula. We therefore considered the ad confused between infant formula and follow-on formula and also had the effect of advertising infant formula.
Because the ad confused between infant formula and follow-on formula and had the effect of marketing infant formula, we concluded that it breached the Code.
The ad breached 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).
According to EC Regulation 2016/127 (retained in UK law), health claims should not be made by marketers on infant formula. Additionally, only health claims authorised on the Great Britain nutrition and health claims (NHC) register were permitted in marketing communications for foods, which included follow-on formula. The CAP Code defined health claims as those that stated, suggested or implied a relationship between a food, drink or ingredient and health.As referenced above, we considered that the ad 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 “A2 protein milk may be easier to digest than regular cow’s milk”, in the context of hearing about A2 protein formula milks, to mean they could have digestive benefits for 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, there was no authorised health claim for A2 milk protein, and the claim therefore also breached the Code on that basis.
The ad breached CAP Code (Edition 12) rules
Marketers have primary responsibility for ensuring that their marketing communications are legal. Marketing communications should comply with the law and should not incite anyone to break it.
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 applicable register. Claims must be presented clearly and without exaggeration.
Only nutrition claims listed in the applicable register may be used in marketing communications.
Only health claims listed as authorised in the applicable register, or claims that would have the same meaning to the consumer, may be used in marketing communications. (Food, food supplements and associated health or nutrition claims).
The ad must not appear again in the form complained about. We told Nutricia Ltd t/a Cow & Gate 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. We also told them not to make health claims for infant formula or unauthorised health claims for follow-on formula.