Background

Summary of Council decision:

Two issues were investigated, both of which were Upheld.

Ad description

A website ad and an Ebay listing for Atlantic Kelp Seaweed’s “ORGANIC Seaweed” product, seen on 27 June 2016:

a. The website www.atlantickelp.com, featured the claim, “Did you know that kelp contains more iron than steak?”.

b. The Ebay product listing featured the claim, “Iodine is important for regulating growth and metabolism”.

Issue

Derbyshire County Council’s Trading Standards Service challenged whether the following claims complied with the Code:

1. the comparative nutrition claim “kelp contains more iron than steak” in ad (a); and

2. the health claim “Iodine is important for regulating growth and metabolism” in ad (b).

Response

1. The Atlantic Kelp Company Ltd referred to the United States Department of Agriculture database entry for beef in the form of ‘grass fed’, ‘strip steaks’, ‘lean only’ and in ‘raw’ form, which stated that per 100 g of beef there was 1.85 mg of iron. They also provided a nutritional profile for kelp which stated that per 1 g of kelp there was 0.7 mg of iron.

2. The advertiser stated that the claim “Iodine is important for regulating growth and metabolism”, was supported by two health claims from the EU Register of nutrition and health claims made on foods: “Iodine contributes to normal energy-yielding metabolism” and “Iodine contributes to the normal growth of children”.

Assessment

1. Upheld

The ASA noted that according to Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation), which was reflected in the CAP Code, only comparative nutrition claims listed in the Annex to the Regulation could be used in ads promoting foods, and that the advertiser must ensure that the product met the conditions of use associated with the claim. Additionally, the Code required that comparative nutrition claims 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 bear a nutrition claim.

We considered consumers were likely to understand the claim that kelp contained “more iron than steak” to have the same meaning as the authorised comparative nutrition claim “increased [name of nutrient]”. We noted the Annex required that the claim was only authorised where the nutrients compared were not vitamins or minerals, that the product about which the claim was being made must meet the conditions of use for a “source of” nutrition claim, and that the increase in iron content was at least 30% compared to a similar product.

The advertiser had neither provided evidence which demonstrated that the advertised product met the conditions of use for a “source of” claim, nor that it contained 30% more iron than steak. We also understood that the product was sold as a food seasoning. We considered that it would, therefore, not be viewed as an alternative for consumption of steak and therefore was not in the same food category. Furthermore, we noted that iron was a mineral and therefore it was not permitted to make an “increased [name of nutrient]” claim in relation to a product’s iron content. We concluded the claim that “kelp contains more iron than steak” was in breach of the Code.

On this point, ad (a) breached CAP Code (Edition 12) rules  15.1 15.1 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 EU Register. Claims must be presented clearly and without exaggeration.    15.1.1 15.1.1 Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
 and  15.3 15.3 Comparative nutrition claims must compare the difference in the claimed nutrient to a range of foods of the same category which do not have a composition which allows them to bear a nutrition claim.  (Food, food supplements and associated health or nutrition claims).

2. Upheld

The CAP Code defined a health claim as any claim that stated, suggested or implied that a relationship existed between a food category, a food or one of its constituents and health. It further stated that only authorised health claims were allowed in marketing communications, and advertisers must ensure that the food met the conditions of use associated with the authorised health claim.

We considered the claim “Iodine is important for regulating growth and metabolism” was a health claim. The Regulation allowed that health claims did not have to be worded exactly as they were on the EU Register, provided that the reworded claim was likely to have the same meaning for consumers as that of the relevant authorised claim or claims. We considered the advertising claim should therefore have the same meaning for consumers as the two authorised health claims on the Register: “Iodine contributes to normal energy-yielding metabolism” and “Iodine contributes to the normal growth of children”.

We considered that by replacing “iodine contributes to” with “iodine is important for” the advertised claim exaggerated the importance of iodine in the metabolic and growth processes referred to in the authorised claims. We further considered that the removal of references to the “normal” growth of children and “normal” energy-yielding metabolism could be understood to exaggerate the health benefits of iodine.

We concluded that the claim “Iodine is important for regulating growth and metabolism” was unlikely to be interpreted by consumers as having the same meaning as the two authorised claims and it was therefore in breach of the Code.

We further noted that the advertiser had not provided any evidence to demonstrate that the product met the conditions of use associated with the two authorised claims. We, therefore, concluded the ad also breached the Code in that regard.

On this point, ad (b) breached CAP Code (Edition 12) rules  15.1 15.1 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 EU Register. Claims must be presented clearly and without exaggeration.  and  15.1.1 15.1.1 Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
 Food, food supplements and associated health or nutrition claims).

Action

The ads should not appear again in their current form. We told The Atlantic Kelp Company Ltd not to make comparative nutrition claims unless they held evidence which demonstrated that their product met the conditions of use for such claims; that they only used such claims in relation to nutrients for which the claims were permitted; and that they only compared foods in the same category. We also told them not to make health claims unless they held evidence which demonstrated their product met the associated conditions of use, and to ensure that they retained the meaning of, and did not exaggerate, any authorised health claims if they reworded them to aid consumer understanding.

CAP Code (Edition 12)

15.1     15.1.1     15.3    


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