Two TV ads for flora pro-activ:
(a) One ad showed a woman swimming whilst on-screen text stated, "Real People. Real Results ... Isabelle, 46 years old ... Likes swimming and chatting". The ad then showed the woman walking alongside the pool and being given a series of cards to hold: the first card read "6.8", the second "6.2". A voice-over during this scene stated, "When my doctor told me that my cholesterol was high I started using clinically proven Flora pro-activ, now it's considerably lower." Smaller on-screen text also stated, "Flora pro-activ contains plant sterols. A daily consumption of 1.5 - 2.4g of plant sterols can lower cholesterol by 7-10% in 2-3 weeks as part of a healthy diet and lifestyle. Individual results may vary".
The ad then cut to a graphic representing Flora helping to reduce cholesterol. The voice-over continued, "The plant sterols in Flora pro-activ are clinically proven to significantly lower cholesterol." The final scene showed a tub of Flora pro-activ on a kitchen worktop. The voice-over and on-screen text stated, "No other food lowers cholesterol more". The final scene also featured the URL "floraproactiv.co.uk".
(b) The second ad was in the same format as ad (a) and contained the same claims. It differed only in the character used, a woman cycling, whose cholesterol was said to have reduced from 5.3 to 4.9.
Two complainants challenged whether the claim "no other food lowers cholesterol more" could be substantiated.
Unilever UK Ltd (Unilever) said the following foods were known to lower cholesterol: plant sterols; plant stanols; beta-glucan; and soy protein. They said that of all these foods plant sterols and stanols were the most efficacious in lowering cholesterol and that, on average, consuming 2 g of plant sterols or stanols daily could lower LDL-cholesterol levels by 10%.
They said plant stanols and sterols had comparable cholesterol lowering capability, therefore the ad had made a 'top parity' claim rather than an outright superiority claim. It had not implied that the product was better at lowering cholesterol than any other food, only that no other food could lower cholesterol more.
They submitted scientific studies which looked at the cholesterol-lowering properties of plant sterols, plant stanols, beta-glucan, soy protein, almonds, sunflower oil and olive oil. They said this data showed that plant sterols and stanols were more effective than the other foods in lowering cholesterol.
Furthermore, they said the EU Register of nutrition and health claims for foods confirmed that plant sterols were authorised to make a claim to lower cholesterol with an effect of 7‒10%, with a daily consumption of 1.5‒2.4g over a period of 2‒3 weeks, as part of a healthy diet and lifestyle.
Unilever said there were no other foods or food ingredients on the market with significant, scientifically proven cholesterol-lowering effects, therefore they believed that it was substantiated that "no other food lowers cholesterol more" than Flora-pro activ.
Unilever stated that it was well known and widely publicised that high cholesterol was a risk factor in the development of coronary heart disease. Their target audience was a particular group of consumers who were interested in cholesterol and health. They noted that the full authorised claim included the wording “High cholesterol is a risk factor in the development of coronary heart disease”, but they considered this was superfluous based on the average consumer’s understanding.
Clearcast said their nutrition consultant was satisfied that the claim was substantiated by Unilever's evidence. They were confident that the on-screen text, which outlined the magnitude of effect over a specified time period, appropriately qualified the claim in line with the 'conditions of use' of the relevant authorised claim.
The ASA noted that according to EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (the Regulation), which was reflected in the BCAP Code, only health claims listed as authorised on the EU Register were permitted in marketing communications. References to general, non-specific health benefits could be made, under Article 10(3), but only if those claims were accompanied by a specific, authorised health claim. Specific health claims relating to disease risk reduction were authorised under Article 14(1)(a). We noted that there was such an authorised claim for plant sterols.
The full wording of the authorised claim was "Plant sterols have been shown to lower/reduce blood cholesterol. High cholesterol is a risk factor in the development of coronary heart disease". The conditions of use for this claim stated that marketers must provide, "Information to the consumer that the beneficial effect is obtained with a daily intake of 1,5‒2,4 g plant sterols". The conditions also stated that, "Reference to the magnitude of the effect may only be made for foods within the following categories: yellow fat spreads, dairy products, mayonnaise and salad dressings. When referring to the magnitude of the effect, the entire range '7‒10 %' and the duration to obtain the effect 'in 2‒3 weeks' must be communicated to the consumer." We noted that the ads included this information via on-screen text.
We noted that marketers could exercise some flexibility in rewording authorised claims, but only in order to aid consumer understanding and the meaning of the permitted claim could not be altered. The sentence "High cholesterol is a risk factor in the development of coronary heart disease" had not been included in either ad. We considered that this change of wording did not aid consumer understanding, but significantly altered the meaning of the authorised claim. We therefore considered that the omission of this sentence was in breach of the Code.
The ads also contained the statement "no other food lowers cholesterol more", which was not mentioned in the claims authorisation for the disease risk reduction claim for plant sterols. We considered that this was a specific health claim; therefore it could only be made if it was listed as authorised on the EU Register. We noted the scientific evidence submitted by Unilever, but because the claim "no other food lowers cholesterol more" was not listed as authorised on the EU Register we considered that the inclusion of that statement was in breach of the Code.
Because the wording of the authorised health claim used in the ads omitted important information and because the ads contained a comparative claim that was not justified by the claims authorisation or listed as a separate authorised claim, we concluded that the ads breached the Code.
The ads 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. (Food, food supplements and associated health or nutritional claims) and 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 (EU Register).
The ads must not be broadcast again.