Who: The Advertising Standards Authority (ASA), GlaxoSmithKline and Pepsico
Where: United Kingdom
When: 8 January 2014
Law stated as at: 10 February 2014
The ASA has recently been asked to consider a range of claims made in two advertising campaigns for food and drink products and whether they were compliant with Regulation 432/2012 establishing a list of permitted health claims made on foods (“Authorised Claim” or “AC”) and with scientific assessments undertaken by the European Food Safety Authority (EFSA).
Under EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods (“the Regulation”) only health claims which appear on the official list of ACs on the Health Claims Register (“the Register”) can be made in ads promoting foods (including drinks) and marketers must also ensure that they meet the conditions of use associated with the ACs in question.
The first campaign considered by the ASA was by PepsiCo advertising its Naked Juice range, the second by GlaxoSmithKline for Lucozade Sport.
1. Adjudication regarding Lucozade Sport campaign
A TV and poster ad campaign created on behalf of GlaxoSmithKline UK Ltd (“GSK”) for its Lucozade Sport product gained quite a bit of attention, but not all for the right reasons. The ASA received 63 complaints.
The TV ad showed two groups of men running on treadmills while being monitored by lab equipment and technicians. Superimposed text stated “LUCOZADE SPORT vs WATER”. One group was shown drinking water and the other was shown drinking Lucozade Sport as they ran. The voice-over stated: “At the limits of your ability, you need to replace the electrolytes you lose in sweat, keep your body hydrated, give your body fuel. Lucozade Sport gives you the electrolytes and carbohydrates you need, hydrating you, fuelling you better than water.”. Of those men seen drinking water, all gradually dropped out of the physical test while four Lucozade Sport drinkers continued to run.
The Lucozade drinkers were then seen celebrating and the ad finished with on-screen text stating: “HYDRATES AND FUELS YOU BETTER THAN WATER” with an image of the product. The poster forming part of the campaign, featured a professional rugby player and stated “HYDRATES AND FUELS YOU BETTER THAN WATER … SEE CHRIS TAKE THE PERFORMANCE CHALLENGE AT LUCOZADESPORT.COM”.
All 63 complainants (which included The Natural Hydration Council) challenged whether the claim “hydrates and fuels you better than water” breached the CAP Code and BCAP Code.
GlaxoSmithKline UK Ltd’s response?
The main arguments put forward by GSK included that Lucozade Sport is a carbohydrate-electrolyte solution and that the two health claims in the campaign were consistent with equivalent ACs under Regulation 432/2012 following scientific assessments undertaken by EFSA. GSK argued the claim “hydrates you better than water” was consistent with the AC “carbohydrate-electrolyte solutions enhance the absorption of water during physical exercise” and that their claim “fuels you better than water” was supported by the AC “contributes to the maintenance of endurance performance during prolonged endurance exercise”.
GSK argued a number of official documents, including the Department of Health’s guidance “General principles on flexibility of wording for health claims”, made it clear that the ACs did not have to be followed to the letter and so some flexibility of wording was possible provided consumers’ understanding of the claim was aided. GSK said their claim “Hydrates and fuels you better than water” was a consumer-friendly articulation of the two equivalent ACs and, as a result, were allowable claims under European Regulation (EC) No 1924/2006 and rules 15.1 and 15.1.1 of the CAP Code.
GSK pointed out the hydration and endurance performance claims had been approved in respect of carbohydrate-electrolyte drinks used in the context of physical exercise (and prolonged endurance exercise in the case of then endurance performance claim) and that their ads complied with such requirements as they were set in the context of endurance sports such as rugby and long distance running. Furthermore, the product formulation of Lucozade Sport met the conditions of use set out in the Annex to the Register in relation to carbohydrate-electrolyte solutions.
Did the ASA agree?
No – the ASA ruled that the ads must not appear again in their current form as they had breached the CAP and BCAP Codes.
The regulator said GSK had to ensure any claims used in their advertising for such a product: (a) retained the meaning of ACs if they were at all reworded to aid consumer understanding; and (b) avoided substituting product names for the nutrient, substance, food, or food category, for which a claim had been authorised.
The main findings of the ASA in this case included:
- The ASA considered whether the health claims made in the ads had retained the meaning of the relevant ACs. The ASA noted that the definition of the verb “hydrate” was to “cause to absorb water” and therefore considered that the claim “hydrates … better” was sufficiently similar to the part of the AC which stated “enhances the absorption of water” and that consumers would still understand the meaning of that aspect of the claim. However, the ASA considered that rewording the part of the AC which stated “contributes to the maintenance of … performance” so that it simply read “fuels” meant that consumers were less likely to understand correctly the meaning of that part of the AC.
- The ASA noted that the AC which GSK said its use of “hydrated” equated to included a reference to “physical exercise” and the AC submitted by GSK to be in support of the “fuels” element of its claim, included a reference to “prolonged endurance exercise”. The ASA also noted that GSK had sought to illustrate prolonged endurance exercise in its ads visually. However, the reworded claim did not make any express reference to prolonged endurance exercise. The ASA considered the setting of the TV ads to be an acceptable alternative to including an explicit reference to prolonged endurance exercise within the reworded claim itself. In the poster ad, however, the reference to prolonged endurance exercise was less evident through just including an image of a rugby player. The average consumer would not necessarily infer from this that the claimed health benefits would only be achieved during prolonged endurance exercise.
- The ASA noted that while the Regulation did not place any specific restriction on the use of comparative health claims, but to be acceptable, any such comparative health claims would themselves have had to be ACs. With regard to the AC “carbohydrate-electrolyte solutions enhance the absorption of water during physical exercise” the ASA considered that this claim implicitly contained a comparison with plain water and that therefore it might have been acceptable for GSK to state that the product “hydrates … better than water”.
However, the ASA felt that even if it had accepted that “fuels” was an acceptable rewording of the AC claim “contributes to the maintenance of endurance performance during prolonged endurance exercise”, that claim did not make any comparison with water. The ASA ruled, therefore, that it was not acceptable for GSK to state that the product “fuels … better than water”.
2. Adjudication regarding Naked Juice’s online campaign
The website www.nakedjuice.co.uk (owned and operated by PepsiCo International Ltd) was headed “NAKED RANGE We’re all natural with a pound of the best bare-naked fruits in every 454g bottle, with no added sugar or preservatives – ever”. Text under the sub-heading “ANTIOXIDANT FAMILY” stated “Juice Smoothies loaded with nature’s elite fighting force to defend your body against free radicals (those nasty little molecules that attack your cells and could have an impact on your overall health)”.
There was then a reference to Naked Juice’s “Green Machine” and “Mango Machine” products with links to further product information. Those products were also linked to under the heading “ANTIOXIDANT” in the sidebar of the website. This campaign received just one complaint which queried whether the claims used (including the use of the word “antioxidant”) were authorised claims on the Register.
PepsiCo International Ltd’s response
PepsiCo said that when the Regulation was announced, the EC Commission issued guidance which made it clear that a claim that a foodstuff “contain[ed] antioxidants” was a health claim. Guidance subsequently published by the UK’s Department of Health also said that claims such as “contains antioxidants”, which referred to the role of a nutrient in the function of the body, were defined as health claims and as such must be authorised on the Register.
PepsiCo considered that neither of those guidance documents made it clear whether, under the Regulation, the term “antioxidant” was a specific health claim or a non-specific, general health claim (defined by the Regulation as a reference to a general, non-specific benefit of a nutrient or food for overall health). In the absence of direct guidance, PepsiCo therefore believed the term “antioxidant” was a non-specific, general health claim, and it was therefore permissible to use it, provided it was accompanied by a specific health claim which was authorised on the Register.
PepsiCo explained that the ‘Green Machine’ and ‘Mango Machine’ products both contained Vitamin C in amounts high enough to allow claims that the product contained Vitamin C, along with any associated authorised health claims for Vitamin C. Various claims relating to the antioxidant activity of Vitamin C had been considered by EFSA which had concluded there was evidence to support the claim “Vitamin C contributes to the protection of cells from oxidative stress”, and as a result that health claim was then authorised on the Register.
Like GSK, PepsiCo also pointed out the Regulation allowed for flexibility in the wording of health claims based on ACs and it also pointed out that EFSA used the term “antioxidant” several times when discussing the effect of Vitamin C, and the authorised claim moved from using that term to a more specific description of oxidative action. PepsiCo argued the use of the word “antioxidant” was essential as it was well-known in the UK market and one with which consumers were familiar.
PepsiCo therefore believed the average consumer would understand the term “antioxidant” to give a benefit such as the “… protection of cells against oxidative stress”, and therefore the terms were synonymous to consumers. Furthermore, the use of the term “antioxidant” helped consumers to understand the exact wording of the AC, which PepsiCo considered to consist of highly technical industry language more likely to lead to consumers being misled.
Did the ASA agree?
No, the ASA once again upheld the complaints where variations of ACs in this space were concerned. As with the GSK adjudication, the ASA noted that according to the Regulation, only health claims listed as authorised on the EU Register were permitted in marketing communications and that CAP Code rule 15.2 allowed references to general, non-specific health benefits to be made, but only if those claims were accompanied by a specific, authorised health claim. The main points arising from this adjudication to note include:
- Whereas PepsiCo believed guidance documents from the EC Commission and the Department of Health did not make clear whether the term “antioxidant” would be defined as a health claim or a general, non-specific health claim, the ASA considered both documents were unequivocal in setting out that a claim that a food contained antioxidants was an example of a health claim which must be authorised on the Register.
- The ASA considered that the claims “ANTIOXIDANT” and “ANTIOXIDANT FAMILY” were not references to a general, non-specific benefit of the product for overall health, but were specific health claims because the term “antioxidant” referred to the function of a substance on the body. “Juice Smoothies loaded with nature’s elite fighting force to defend your body against free radicals (those nasty little molecules that attack your cells and could have an impact on your overall health)” was also considered a specific health claim for the same reason.
- The ASA acknowledged that the EFSA opinion in which the AC in question here was approved, used the term “antioxidant” a number of times. However, the Department of Health guidance warned against picking sentences or phrases from an EFSA opinion when adapting the wording of an AC, because it could increase the risk of changing the meaning of the claim.
- The ASA considered that the use of the term “antioxidant” in EFSA’s opinion did not equate to approval of the term as a rewording of the relevant AC. Furthermore, although the EFSA opinion listed various claims that had been considered in relation to the effects of Vitamin C, including the claims “antioxidant activity/antioxidant” and “antioxidant properties”, EFSA had concluded that the wording justified by the evidence was “Vitamin C contributes to the protection of cells from oxidative stress”; they had rejected all claims which used the term “antioxidant”. The ASA therefore considered the claim “ANTIOXIDANT”, in the context of the ad, did not convey the full meaning of the AC in question to consumers and therefore was in breach of relevant CAP Code provisions.
- As with the GSK Lucozade case, the ASA again pointed out that health claims could only be made for the nutrient, substance, food, or food category for which they had been authorised, and not for the product itself. In the case of this campaign, neither claim included any reference to Vitamin C as the nutrient which conferred the health benefit referenced in the AC – instead it referred to particular products only and so breached the CAP Code in this regard.
Why this matters:
From these two recent adjudications, we can take away the following key lessons where nutrition health claims and Regulation 432/2012 are concerned:
1. The Regulations permit a degree of flexibility in the wording used for authorised nutrition or health claims provided that the claim used by an advertiser is likely to have the same meaning for consumers as that of the authorised health claim in question.
2. The aim behind any AC rewording by an advertiser must be shown to be to aid consumer understanding (and the ASA gives the example of taking into account linguistic variations and the target audience of a campaign). In the Lucozade case, the ASA acknowledged GSK’s argument that its claim rewording was “common sense” as Lucozade Sport would “fuel” consumers better than water because it contained calories when water did not. Common sense aside, however, such an argument will not prevail as health claims which appear on the EU Register must be adhered to with permitted variations only.
3. Health claims can only be made for the nutrient, substance, food, or food category for which they have been authorised and not for an advertised product itself (because the authorised claims describe the particular health relationship that EFSA said had been substantiated by scientific evidence). Products in general must therefore not be stated to provide the health benefits which are the subject of an AC without any explanation of how they provide that benefit (e.g. which of their ingredients).
4. The CAP Code requires that health claims must be presented clearly and without exaggeration. The Department of Health’s guidance on this area also warns that when adapting the wording of an AC, an advertiser must ensure they do not make the claim in question ‘stronger’ than the AC. In the Naked Juice case, the ASA considered that the claim “ANTIOXIDANT FAMILY Juice Smoothies loaded with nature’s elite fighting force to defend your body against free radicals (those nasty little molecules that attack your cells and could have an impact on your overall health)” implied complete protection for the body against free radicals, which in the ASA’s view exaggerated the AC and so breached the CAP Code.