Summary of Council decision:
Two issues were investigated, of which one was Not upheld and one was Upheld.
A TV ad for Yakult showed an animation of a bottle of Yakult skipping, walking a tightrope and pole-vaulting. A voice-over stated, "Yakult has been enjoyed for 75 years. At Yakult, we appreciate the importance of regular exercise routines. We know how important it is to keep life in balance; and to overcome life's obstacles. Just like Yakult's unique bacteria that are scientifically proven to reach the gut alive. Today millions of people around the world drink Yakult every day. Yakult. A bottle for you every day."
The complainant challenged whether:
1. the claim that "Yakult's unique bacteria are scientifically proven to reach the gut alive" could be substantiated; and
2. the presentation of the ad implied a general health claim, which was not compliant with the BCAP Code.
1. Yakult UK Ltd (Yakult) said the claim "Yakult's unique bacteria are scientifically proven to reach the gut alive" was a statement of fact and a product characteristic. Yakult's unique strain of bacteria, Lactobaillus casei Shirota (LcS), was the product's unique selling point and was selected on the basis of tests indicating that it would survive through the gut. They submitted a dossier of evidence to Clearcast, who approved the claim.
Yakult said the claim that LcS survived passage through the digestive system was evidenced by human intervention studies, where subjects consumed Yakult or similar fermented milk products containing LcS, and afterwards faeces were analysed for the presence of live cells of LcS. They submitted the studies in full.
Clearcast sought advice from their nutritional consultant, who assessed the information provided by Yakult and agreed that it showed that the bacteria (LcS) reached the gut whilst still alive.
2. Yakult said the ad was designed and approved on the basis that it did not convey any health claims. It was intended to convey generic comments about lifestyle, together with specific factual information about the product, but not any health claims. The imagery of the ad was dominated by the iconic Yakult bottle shown in a topical theme during a year where sport was major news in the UK. No nutritional or health claims were made in the voice-over or via the imagery.
They said scenes of the Yakult bottle skipping, walking on a tightrope and pole vaulting contained no health claims. The images were generic phrases, which reflected the then current national interest in sport. The claim, "We know how important it is to keep life in balance and to overcome life's little obstacles. Just like Yakult's unique bacteria that are scientifically proven to reach the gut alive", was intended to present a factual product characteristic. The bacteria in Yakult had to overcome obstacles on their internal journey to survive through the gut; this reflected the everyday obstacles that people face getting through the day.
Clearcast said the general presentation of the ad did not imply that the product had any effects on health. They felt the visuals of the Yakult bottle participating in physical activities merely suggested that an active lifestyle was conducive to keeping healthy; for example, the voice-over mentioned that 'regular exercise routines' were a good thing to keep up in order to maintain general health. In Clearcast's view, this was separate from any claims regarding the properties or effects of the product. The bottles were shown as characters overcoming the 'obstacles' of the sports they were participating in, and they did not indicate the products' benefits or effects in overcoming health obstacles.
1. Not upheld
The ASA noted the studies submitted by Yakult UK Ltd in support of the claim. The first study, a placebo-controlled, double-blind, parallel-group comparative design study by Matsumoto et al. (2010), looked at the effects of a "probiotic" fermented milk beverage containing LcS, on certain areas of digestive health. It consisted of 34, healthy adult participants consuming a fermented milk beverage once a day for four weeks. Stool samples were collected and examined for faecal microflora. Aside from the study's conclusions regarding digestive health, the results and conclusions indicated that LsC survived transit through the gut.
The second study, Sakai et al. (2010), looked at the suitability of a new type of agar as a medium for distinguishing LcS from other bacteria. The study used a method developed by a previous study to selectively enumerate bacteria from human faeces. The study consisted of a one-week observational period and a one-week intervention period. Although the study's conclusions related to the suitability of the agar, the results showed a higher count of viable LcS in the faecal samples of the participants after one week of "probiotic" drink intake, indicating that LcS survived transit through the gut.
A third study, by Fujimoto et al. (2008), was concerned with the enumeration of LcS in human faeces. As with the above, the main conclusions were irrelevant to the claim in the ad, but the results and discussion indicated that LcS survived transit through the gut.
A fourth study, by Tuohy et al. (2007), aimed to measure the gastrointestinal survival of lactobacillus casei and its impact on the gut microflora in healthy human volunteers. The double-blind, placebo-controlled feeding study included 25 volunteers and concluded that the results showed LcS survived "well" within the human gastrointestinal tract.
A fifth study, by Shiori et al. (2006), a randomised placebo-controlled cross-over study, that lasted nine weeks, featured female patients with constipation. As with the above, the main conclusions were irrelevant to the claim in the ad, but the results and discussion indicated that LcS survived transit through the gut.
A sixth study, Yuki et al. (1999), assessed the survival of LcS in the gastrointestinal tract. Although the study concluded that further studies were needed to explore the dynamics of LcS in the intestine, it also concluded that LcS survived passage through the gastrointestinal tract after consumption of fermented milk products containing the strain.
The final study, by Spanhaak et al. (1998), looked at the effect on the intestinal microflora of consuming fermented milk containing LcS. It was a placebo-controlled randomised trial with 20 healthy male volunteers and was eight weeks in duration. The results showed an increase in the LcS count in the faeces samples of the intervention group.
Most of the studies submitted, with the exception of the two studies that explicitly looked at LcS's ability to survive gastrointestinal passage, were primarily concerned with either methods of enumerating or evaluating lactobacillus organisms in human faecal samples, or with the potential effects of a lactobacillus drink on health. However, we considered that the body of evidence submitted indicated that significant numbers of viable LcS organisms survived transit to the gut after consumption of fermented milk products, such as the Yakult product. We therefore concluded that the claim had been substantiated.
On this point we investigated the ad under 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) and 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) but did not find it in breach.
The complainant challenged whether the general presentation of the ad implied that the product had health benefits. We noted that non-specific health claims for food products, whether they were stated or implied, must be accompanied with a specific health claim, authorised on the EU Register of health and nutrition claims for foods.
The animation of the Yakult bottle tied in with what was said in the voice-over. Whilst the bottle was shown skipping, the voice-over said, "At Yakult, we appreciate the importance of regular exercise routines"; whilst it was walking a tight-rope, the voice-over said, "We know how important it is to keep life in balance ..."; and whilst it was pole vaulting, the voice-over said, "... to overcome life's obstacles. Just like Yakult's unique bacteria that are scientifically proven to reach the gut alive."
However, we considered that the references to sport, regular exercise and keeping a balanced life, both in the voice-over and the animation, together with the claim about LcS reaching the gut alive and the closing statement, "Yakult. A bottle for you every day", formed a general impression that there was a health advantage to drinking Yakult. We noted Yakult's defence that the ad was broadcast during a time, i.e. the Olympic Games, when sport was a major news story. However, we did not think that the reference to the Olympic Games was particularly explicit. And even if the reference had been explicit, it did not remove the implication that there was a relationship between the product and health.
Because we considered that the ad implied general benefits of Yakult to overall good health and the ad did not contain a relevant, authorised health claim, we concluded that it breached the Code.
On this point we 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. (Food, food supplements and associated health and 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 and 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 (EU Register).
The ad must not be broadcast again.