Background
Summary of Council decision:
Two issues were investigated, both of which were Not upheld.
Ad description
A banner ad promoting organic milk appeared on the "milk alternatives" section of the retail platform website www.tesco.com. The ad contained an image of two cows with a speech bubble next to each. The first read "This latest high-protein diet is amazing, hun. You must try it." The other read "No thanks, love, I'm organic. I only do natural." Text underneath the image stated "Organic. Naturally different". The ad contained a click-through link which directed consumers to Tesco's organic dairy products range.
Issue
The complainant challenged whether the ad was misleading, because it implied that:
1. high-protein dairy cow diets were not natural; and
2. no cows from which organic milk was sourced were fed high-protein diets.
Response
1. Organic Trade Board responded on behalf of both parties. They said the protein level of a dairy cow diet was related to the milk yield; higher yields required a higher total quantity of protein to sustain them. Further, because protein levels were lower in forage than in concentrate animal feed, there was an inverse correlation between the amount of forage consumed by a dairy cow and the proportion of protein in its diet. They stated that the emphasis in conventional (non-organic) dairy farming was on the feeding of chemically altered or genetically modified feed ingredients to increase protein and energy concentration in the diet, with the aim of increasing milk yield at a lower cost of production. They said non-organic cows would not achieve current levels of milk production purely on grass pastures or forage, without the supplementation of a modified diet.
Organic Trade Board stated that the Food Standards Agency (FSA) defined a "natural" food product for humans as one comprised of ingredients produced by nature, not the work of man or interfered with by man by use of chemicals or technology. They believed that, whereas the content of organic cow diets was strictly regulated by EU law, non-organic dairy cow diets frequently included the use of genetically modified ingredients and feeds which had been chemically treated or altered, such as soya from which the oil was extracted using chemical solvents and urea-treated wholecrop, and were therefore not natural. They provided a link to information on common ingredients in the dairy cow diet produced by Dairy Co, a division of the Agriculture and Horticulture Development Board working on behalf of both organic and non-organic dairy farmers, which listed urea-treated wholecrop as a material available for dairy feeding.
Organic Trade Board noted that organic dairy farming, which they described as precluding the feeding of high-protein diets, was required by law to ensure that at least 60% of the dry matter in the daily diet consisted of forage (roughage, fresh or dried fodder or silage). Further, the concentrate element of organic feed was regulated such that it must be produced without chemical solvents or genetically modified ingredients. Because the diet of non-organic cows was not restricted in that way and therefore included the use of ingredients interfered with by man or chemicals, they considered that the diet of non-organic cows, which would commonly be high in protein in order to obtain high milk yields, was not natural.
2. Organic Trade Board considered that the requirement that organic cattle receive at least 60% forage in their daily diet was important in demonstrating that they would not be fed high levels of protein. They provided a copy of a table produced by Dairy Co which showed typical diet specifications in Holstein Friesian milkers, which they said represented 90% of British dairy cattle herds. That showed that cows receiving more than 60% of their diet in forage would typically fall into the "low yield" category and would receive 16.0‒16.5% crude protein in their diet. Cows on a medium yield diet would receive 50‒60% forage and 16.5‒17.0% crude protein. Organic Trade Board explained that the differences between high and low protein levels were small, but would vary between 15% (low protein) and 19% (high protein). They said the yield of organic herds was lower than that of conventionally managed herds and stated that, according to 2011 statistics, organic dairy cows typically yielded 6,931 litres per year, whilst the figure for conventional cattle was 8,251 litres per year.
Organic Trade Board said the requirement that organic cattle receive at least 60% forage in their diet was a legally binding, annually inspected regime, and stated that research funded by the Department for Environment, Food & Rural Affairs (Defra) showed that the norm was often higher than 60%, in contrast with conventionally farmed cattle which in some cases received less than 50%. Organic Trade Board stressed that feeding organic cows a high-protein diet would result in a breach of regulations around how the cows should be fed; they supplied copies of letters from the two main UK organic certification bodies responsible for ensuring that organic standards were followed, which confirmed that they applied the relevant organic standards in their inspections. One of those bodies further commented that milk sourced from cows fed on high protein diets would not be able to be sold as organic, because the EU standards were incompatible with that feeding system.
Assessment
1. Not upheld
The ASA noted that the ad featured an "organic" cow refusing to try a high-protein diet, stating "I'm organic. I only do natural". We considered that consumers were likely to understand from that that high-protein dairy cow diets were not natural. We understood that dairy cows were routinely fed a combination of forage and concentrate, and that the concentrate element of the diet was generally higher in protein; where a farmer wished to increase the protein content of their herd's diet (often for the purposes of increasing yield), they would typically increase the proportion of concentrate in the diet.
We noted the information supplied by Organic Trade Board regarding the differences in the type of concentrate fed to organic herds, which they considered could not be fed high-protein diets, and conventionally managed herds, which could be. Although we recognised those differences, we also understood from Dairy Co that organic concentrate feeds could be produced by mechanical means, such as pressure expulsion and micronisation, and therefore noted that in some cases concentrate feeds given to organic dairy cattle could have been modified by man through use of technology.
However, although we acknowledged that the FSA applied a slightly different meaning to the word "natural" where it was used to describe human foods, we considered that, in the absence of clarification within the ad, most consumers would think of animal diets in simplistic terms and would expect dairy cows to eat only grass, roughage and other types of forage. On that basis, we concluded that consumers would interpret the use of concentrate feed, in both non-organic and organic cow diets, to preclude the description "natural", whether or not the resultant diet was high in protein. We therefore concluded that the implication in the ad that high-protein dairy cow diets were not natural was not misleading.
On that 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. (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) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
2. Not upheld
We understood from Organic Trade Board that there was to some degree an inverse correlation between the proportion of forage and protein in the diet, such that farmers wishing to increase protein levels (and thus milk yield) would typically feed their cattle a lower ratio of forage to concentrate. We also understood that EU law stipulated that organically managed herds must be fed a diet of at least 60% forage, which would limit the farmer's ability to increase protein levels and milk yield. We noted that the statistics provided by Organic Trade Board indicated that milk yields from organic cows were typically lower than from non-organic cows, which we understood was consistent with their receiving less protein.
We sought advice from Dairy Co on what constituted a diet "high" in protein. They commented that the range in protein concentration in a dairy cow's diet would in most circumstances be 15‒19%, and that at more moderate yields (whether in organic or conventionally managed herds) cows would tend to be fed at the lower end of that spectrum, at around 16%. They advised that 19‒20% protein concentration in the total diet would be construed as being "high" in protein, whereas 14‒15% would be "low". We noted that a "high-protein diet" therefore exceeded the typical protein levels set out in the diet specification table supplied by Organic Trade Board even for high-yielding conventionally-managed cattle receiving 45‒55% forage.
We also sought advice from Dairy Co as to the strength of the link between forage and protein levels in dairy cow diets. They stated that different types of forage would contain different levels of protein and therefore the assumption of an inverse correlation between the two was not invariably true. They noted that cows grazing clover-rich swards at certain times of year, as many organic herds did, could consume in excess of 20% protein in their daily diet; this level of protein consumption was not required by the animal but was difficult to regulate in grazing situations.
We considered that most consumers would understand from the ad that, whereas some conventionally managed cattle were fed diets artificially high in protein, organic dairy farming precluded such a practice. Whilst we acknowledged that the protein content of forage would vary and therefore that some organic cattle may receive high levels of protein at certain times of year, we considered that that eventuality was not likely to mislead consumers because the cattle were not being actively managed in such a way as to artificially raise the protein content of their diet. We therefore concluded that the ad was unlikely to mislead as to the likelihood of organic cattle receiving a "high-protein" diet.
On that 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. (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) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration) but did not find it in breach.
Action
No further action necessary.
