Summary of Council decision
Four issues were investigated, all of which were Upheld.
A TV ad for chia & flax seeds featured Matt Dawson, who stated "Have you discovered the power of a Bioglan superfood that you can add to your diet every day? It's highly nutritious". The voice-over then stated, "Just add Bioglan superfood chia and flax seed to your breakfast to get: as much protein as a small egg: more calcium than 100ml of milk; as much fibre as a cup of oats, and a high source of the Omega 3 fatty acid, ALA." Graphics were displayed of the goods being compared, and stated "Protein +Calcium + Fibre + Omega 3". Smaller on-screen text stated "Based on a 25g serving. Calcium helps maintain normal bones. 2g/day of ALA contributes to the maintenance of normal blood cholesterol levels". Matt Dawson concluded, "The pure goodness of a Bioglan superfood is a great addition to a healthy diet. it's so simple, and easy to enjoy. Bioglan superfood: good nutrition for you."
The complainant challenged whether:
1. the claim "superfood" was a general health claim which was not accompanied by a specific authorised health claim on the EU Register of Nutrition and Health Claims Made on Foods (the EU Register);
2. the comparative nutrition claim "as much protein as a small egg" complied with the EU Register;
3. the comparative nutrition claim "more calcium than 100ml of milk" complied with the EU Register; and
4. the comparative nutrition claim "as much fibre as a cup of oats" complied with the EU Register.
1. PharmaCare (Europe) Ltd said the Department of Health (DH) defined the term "superfood" as a non-specific health claim, but it was clear from the wording that there was a clear health benefit from the food which it described. They said DH guidance stated that this general health claim needed to be accompanied by a specific health claim from the authorised list, as required by Article 10(3) of the EU Regulation 1924/2006 on Nutrition and Health Claims Made on Foods (the Regulation). PharmaCare said that when considering whether health and nutrition claims could be made for a product, consideration needed to be given to the main principles of the Regulation, not only those conditions of use set down in the nutrition claims annex or permitted list of health claims.
They said there were no specific authorised health claims for the seeds included in the product (e.g chia). However, the claim that the product was a "superfood" was based on the recommended daily portion of the product (in this case 25 g) providing a "significant" level, based on the recommended daily allowance (RDA), of a number of named nutrients. They said the Regulation required that the nutrient for which the claim was made needed to be present in a sufficient quantity; at least 15% of the RDA. They said that all of the nutrients declared for chai (calcium, phosphorus, magnesium, iron and copper) were all at that 'significant' level. They additionally stated that the product was a good source of fibre and omega-3 fatty acids, including alpha-Linolenic acid (ALA), both of which were known for their health benefits. They believed that because the food provided at least 15% of the RDA of those nutrients, the term "superfood" was defensible.
Clearcast said they paid particular attention to the word "superfood" when considering the ad and had consulted their expert on the matter. They said it had been concluded that the "superfood" claim could be justified if the particular health benefits of the range of nutrients in the product were made clear, so there would be no confusion for the viewer as to the basis of the claim. They said the ad agency had provided a response based on DH guidance and believed that because the "superfood" claim appeared alongside details of the nutrients the product provided, the ad made clear the health benefits of the product. They said that because "superfood" was included in the name of the product, in order to avoid any confusion they had only used this term in the context of the product name: Bioglan Superfoods Chia and Flax.
2.-4. PharmaCare provided tables detailing the amounts of calcium, magnesium, iron, phosphorous and copper contained within a 25-g serving and per 100 g of the product along with the authorised specific health claims for those ingredients (when in the appropriate quantities per serving). They said the Regulation stated that a 30% increase in those nutrients, compared to the comparator food, would be sufficient to bear the comparative claim and that although the Regulation stated that the comparison needed to be from the same food category, the definition of a "food category" was not available. They therefore believed that, alongside other guidelines, it was acceptable for a "food category" to include "breakfast foods". They believed that it was acceptable to compare the nutritional content of chia and flax seeds with other breakfast items and considered this was supported by the fact the ad was set at breakfast time.
Clearcast said they ensured the script was compliant with EFSA (European Food Safety Authority) guidelines and that the comparative claims made clear how much of the product needed to be consumed in order to make clear what benefit each nutrient would provide to the consumer.
The ASA noted the ad made multiple references to "superfood", which we considered to be a general health claim because it referred to a general, non-specific benefit of the food for overall health and that as such, needed to be accompanied by a specific authorised health claim. The ad included the claims "Calcium helps maintain normal bones" and whilst the authorised claim for calcium was "Needed for the maintenance of normal bones", we considered that wording did not exaggerate the authorised claim. The ad also include the claim "ALA contributes to the maintenance of normal blood cholesterol levels", which matched the authorised wording. Furthermore, we understood that a normal 25 g serving of the product contained 41.2% of the RDA for ALA and 20% of the RDA for calcium and that these nutrients were therefore in sufficient quantities in order for the nutrition claims to be made for the product.
We considered that in order for the meaning of general "superfood" health claim to be understandable to viewers, the accompanying specific health claims (the specific references to calcium and ALA) would need to be presented in such a way that it was clear that they accompanied that general health claim.
We noted the on-screen text stated "Based on a 25g serving Calcium helps maintain normal bones 2g/day of ALA contribute to the maintenance of normal blood cholesterol levels". However, we considered the emphasis of the ad was on the comparative nutrition claims (referenced in the voice-over and images) and not the specific health claims and that the ad was therefore presented in such a way that suggested it was comparative nutrition claims that supported the "superfood" general health claim, when this was not the case. We therefore concluded that the ad did not comply with the EU Register and were in breach of the Code.
On this point the ad breached BCAP Code rule 13.4.3 13.4.3 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 (Food, food supplements and associated health or nutrition claims).
2.- 4. Upheld
We noted the Regulation required that only comparative nutrition claims listed in the Annex to the Regulation could be used, and that they must compare the nutrients in the advertised product to a range of foods of the same category (which did not have a composition that allowed them to have nutrition claims). We therefore considered that PharmaCare would need to demonstrate that the claims "as much [named nutrient] as …" and "more [named nutrient] than …" were approved comparative nutrition claims and that the product (chia and flax seeds) was in the same food category as eggs, milk and oats, against which the comparative nutrition claims were made.
We noted the claim "as much [named nutrient] as …" was not an authorised comparative nutrition claim. Although the "more [nutrient] than ..." was not an authorised claim, we considered that a viewers understanding of "increased [nutrient]” claim was sufficiently similar to the authorised "increased [nutrient]" claim in order to prevent it from being misleading.
Furthermore, although we acknowledged the Regulation did not define a "food category", we considered that "breakfast foods" was not a sufficiently narrow category for the purpose of making comparative nutrition claims because it used the occasion on which the foods were consumed, as opposed to the specific food category (seeds) as the basis of the comparison. We therefore considered it had not been demonstrated that the comparative nutrition claims for chia and flax seeds had been made with foods in the same category.
We therefore considered that the claims "as much protein as a small egg", "more calcium than 100ml of milk" and "as much fibre as a cup of oats" did not comply with the EU Register and were in breach of the Code.
On this point the ad breached BCAP Code rules
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) are permitted in advertisements.
Only health claims listed as authorised in the EU Register or claims that would have the same meaning for the audience may be used in advertisements:
www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm. 13.4.2 13.4.2 Advertisements 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. Advertisements must not give a misleading impression of the nutrition or health benefits of the product as a whole and factual nutrition statements should not imply a nutrition or health claim that cannot be supported. Claims must be presented clearly and without exaggeration and 13.5.1 13.5.1 Comparative nutrition claims must compare the difference in the claimed nutrient to a range of foods of the same category which do not have the composition that allows them to bear a nutrition claim (Food, food supplements and associated health or nutrition claims).
The ad should not appear again in its current form. We told PharmaCare (Europe) Ltd to ensure that general health claims and comparative nutrition claims complied with the Code in the future.