On 25 May 2012, Commission Regulation (EU) No 432/21012 of 16 May 2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children's development and health, was published in the Official Journal of the European Union (EU). The Regulation entered into force on 14 June 2012.
A TV ad, broadcast in July 2011, showed a family sitting down to breakfast and comparing their busy days ahead. The youngest son was eating three Weetabix biscuits with milk, then going through his daily activities. The mum and the baby then went through each of their daily activities. The final shot showed the Weetabix packet with a large milk container and a bowl of Weetabix with milk. Text on the packet stated "Weetabix Slow Release Energy" and on-screen text stated "FUEL FOR BIG DAYS". A voice-over at the end stated "Packed with slow release energy to keep you going. Weetabix. Fuel for big days".
Four viewers challenged whether the claim "slow release energy" was misleading, because they understood that Weetabix had a high glycemic index (GI) rating.
Weetabix confirmed that they thought the claim was likely to be understood as a health claim. They had based the claim on the GI of Weetabix with milk, and felt that was reasonable as that was the way the vast majority of consumers ate Weetabix. They provided three surveys which showed that the majority of consumers ate Weetabix with milk. One survey of 368 consumers showed that 96.5% of consumers ate Weetabix with milk. Another survey of 410 consumers showed that 98% of consumers ate Weetabix with milk
They said foods that broke down slowly, such as whole grains, would raise blood glucose slowly and were given low GI values and the British Nutrition Foundation regarded a GI level below 55 as low. They said Weetabix's GI, when eaten with semi-skimmed milk, was tested independently in 2005 using the standard Food and Agriculture Organization of the United Nations (FAO)/World Health Organization (WHO) protocol in place at that time, and the result was a GI of 47. They provided the relevant study and said the standard GI test was based on 50 g of carbohydrate and the test was based on a ratio of 125 ml milk per two Weetabix biscuits, which recreated typical Weetabix consumption. They also provided an additional study and the test results, carried out in 2012, in line with the British and International Standard for GI testing, which showed a GI of 41 for Weetabix and semi-skimmed milk, which they considered was consistent with the 2005 result. They said that, because the tests showed that the GI of Weetabix and milk was in the low range, it substantiated their 'slow release energy' claim. They said all the testing was done using semi-skimmed milk, because that was generally accepted as the recommended type of milk to serve with breakfast cereals, and that when companies detailed nutrition per serving with milk, they always used semi-skimmed. They provided documentation from the British Journal of Nutrition which stated that there was no statistical difference between the GI of skimmed milk and whole milk and they were therefore confident that the type of milk used would not significantly affect the GI of Weetabix with milk.
They said they understood that, when the ad was initially broadcast, the main regulation they needed to comply with was Regulation (EC) No 1924/2006 on nutrition and health claims made on foods, and that regulated the use of generic health claims covered by Article 13. They stated that, as the list of approved health claims had not been published when the ad was initially broadcast, the transition provisions in Article 28 (6) still applied and any claims which were still awaiting authorisation could be used if applications were made before 19 January 2008 and could be used until six months following the decision if they were not subsequently authorised. Therefore, before the list of permitted health claims had been published, claims on the generic list of health claims then being assessed by the European Food Safety Authority (EFSA) could legally be made on foods. They said the EFSA's Register of Questions included the subject "Carbohydrates with a low glycaemic index (GI) - Satiety" and the suggested wording "Low GI (carbohydrate) foods help you feel fuller for longer" (claim 482). They said that low GI foods released their energy slowly, hence "keeping you fuller for longer" and that "Slow Release Energy" was consistent with the claim subject to EFSA assessment.
They acknowledged the EFSA opinion had been negative because EFSA had decided that the particular type of carbohydrate had not been specifically characterised which meant they were unable to assess the claim precisely. They said that did not mean that Weetabix was not a low GI food, nor did it mean that Weetabix with milk did not release energy slowly. They said EFSA's negative opinion in relation to claim 482 simply meant that the claim "low GI foods help you feel fuller for longer" did not apply to all "carbohydrates with a low glycaemic index" because that claim covered too wide and generic a group of carbohydrates and therefore lacked specificity. They also said EFSA opinions were not legally binding and the Commission had not made any decision at the time the ad was initially broadcast and when the complaint was referred to the ASA.
They pointed out that the complainants had challenged the slow release claim because they understood that Weetabix had a high GI, but felt it was clear that the claim related to when Weetabix was consumed with milk, as they felt the ad clearly showed the product with milk in a bowl and the pack was always shown next to a partially emptied container of milk.
Clearcast said they had taken advice from their nutritional consultant who advised that the food did have a low GI when eaten with milk. They provided supporting documentation. They took the view that, because almost all consumers would eat the cereal with milk, and the product was shown with milk in the ad, the claim was supported.
The ASA noted that the documentation showed that Weetabix, when eaten with semi-skimmed milk, had a GI of 41–47, which we understood was in the low range. We understood that Weetabix eaten with whole milk also had a low GI. We consulted the Department of Health (DH), who confirmed that the evidence supported the claim that Weetabix served with semi-skimmed milk was a low GI food. They added that the FAO stated that low GI foods were digested and absorbed more slowly and that those foods released energy more slowly and therefore, based on the FAO evidence, the claim "Packed with slow release energy to keep you going, in relation to Weetabix served with milk, was supported.
With regard to the relevant regulation and the EU register of nutrition and health claims made on foods, we acknowledged that the subject "Carbohydrates with a low glycaemic index (GI) - Satiety" and the proposed claim "low GI foods help you feel fuller for longer" had been submitted for approval to the European Commission in time and that the Weetabix claim was a similar claim.
We noted that EFSA had given a negative opinion in relation to the claim; namely "The panel considers that carbohydrates that induce a low/reduced glycaemic response and carbohydrates with a low glycaemic index (E.G. less than 55) are not sufficiently characterised" and that, at the time the ad was initially broadcast, the claim was still under consideration by the European Commission. However, we also understood that the negative opinion had been given because EFSA had decided that the particular type of carbohydrate had not been specifically characterised and were unable to assess the claim precisely and on that basis EFSA was unable to proceed with support for the general GI health claim, but that, in contrast, Weetabix had characterised their product; namely, that when it was served with semi-skimmed milk, it had a sufficiently low GI.
We acknowledged that the Regulation had come into force on 14 June 2012. However, we understood that, subject to complying with existing national legislation, Weetabix were legally entitled to use the claim when the ad was initially broadcast, because any claims awaiting authorisation could be used if applications were made before 19 January 2008, which was the case, and could be used six months following the decision, as long as the claim complied with existing national legislation.
We considered the presentation of the product in the ad, which showed the family eating a bowl of Weetabix with milk and noted that a milk container was always featured alongside the shots of the Weetabix packet. We also acknowledged that the evidence showed that most consumers would consume Weetabix with milk. In light of that presentation, we considered that some viewers would therefore understand that the claim was likely to relate to Weetabix with milk.
However, we also noted that the ad did not expressly state that the claim "Packed with slow release energy to keep you going" related to Weetabix consumed with milk. We further understood that the DH's guidance to compliance with Regulation 1924/2006 stated: "The Regulation applies to the food ready for consumption in accordance with manufacturers' instructions (Article 5). In the DH's opinion this should only apply where the food could not or should not be consumed otherwise. For example, the requirements of the Regulation would apply to a dehydrated product, only after water has been added in accordance with the instructions. Where the product can be consumed without following the manufacturer's instructions, the requirements would apply to the food as sold. For example breakfast cereal does not have to be eaten with milk and therefore the claim should apply to the cereal as sold and not rely on milk being added".
In light of the DH's guidance and, in the absence of additional qualifying information in the ad, we considered that some other viewers might infer that the claim "Packed with slow release energy to keep you going" related to the Weetabix biscuit itself, rather than the combination of Weetabix and milk. We also noted that the Weetabix packet, which was clearly featured in the final shot, stated "Weetabix Slow Release Energy" and considered that the presentation of the claim on the packet further suggested that the claim referred to the cereal itself, regardless of how it might be consumed.
On that basis, because we considered that some viewers might understand the claim "Packed with slow release energy to keep you going" to relate to Weetabix only, whereas others might understand it to relate to the consumption of Weetabix with milk, we considered that the presentation of the claim was ambiguous, and, in the absence of qualifying information specifying the basis of the claim, we concluded that the ad was likely to mislead.
The ad breached BCAP Code rules
Advertisements must not materially mislead or be likely to do so.
Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means. (Misleading advertising), 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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), 13.4 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 (Food, Food supplements and associated health or nutrition claims).
The claim must not be broadcast again in its current form.
We told Weetabix to make clear that the claim "Packed with slow release energy to keep you going" related to the consumption of Weetabix with milk.
We noted, however, that such a claim could only be made for six months from 14 June 2012, when Commission Regulation (EU) No 432/21012 had entered into force.