Claims for baby milk in ads are often challenged and occupy a large helping of the ASA’s time. Tighter regulation in this area thanks to recent EU measures has also forced the ASA to wrestle with sometimes complex legal issues. This happened again in a recent case involving ads for HiPP Organic follow-on milk. Is the ASA getting on top of the law in this area? Nick Johnson asks in a review of the outcome.
Who: ASA, HiPP UK Limited
When: October 2010
Law stated as at: 8 October 2010
In a move that may impact significantly on food and drink manufacturers of all kinds, the ASA has taken a surprising (and seemingly legally incorrect) anti-European stance in its interpretation of transitional provisions under European Regulation (EC) No 1924/2006 on Nutrition and Health Claims.
Baby milk manufacturer HiPP was challenged by the ASA as to whether its advertising claims about Omega 3 fatty acids complied with the EC Regulation. HiPP argued that its prior compliant use of the same claim ("essential Omega 3 fatty acids… …for healthy brain and nervous system development") in other European jurisdictions brought it with the Regulation's transitional provisions. (Health claims covered by the transitional provisions under Article 28(6) may continue to be used pending their assessment by the European Food Safety Authority.)
No, said the ASA. In its view, only prior use in the UK may be relied upon for these purposes.
Why this matters:
The ASA's stance on this issue is worrying from a number of angles. Admittedly, we are now increasingly used to this body playing judge and jury on a range of technical legal points – from "verifiability" in comparative advertising to application of data protection law in direct marketing cases. However it must be asked whether grappling with complex issues of EU food law is really an effective use of the ASA's limited budget and time – particularly given that the centralised European process to review food health and nutrition claims under this legislation is already afoot.
To make matters worse, the ASA appears to have come to its view without consulting the competent UK government body for this area (the Food Standards Agency) or, for instance, obtaining a declaration from the court. Further, the adjudication presents the ASA's own legal interpretation as a black-and-white statement of law, when in fact a close examination of the legislation and associated FSA guidance suggests otherwise.
Actually, it looks very much like HiPP's interpretation was correct and that, on this occasion, the ASA may have got it wrong.
The Regulation (which has direct effect across all EU member states) has various transitional provisions. Those which are relevant to health claims relating to children's development are set out at Article 28(6). They allow claims which "have been used in compliance with national provisions before [January 2007]…" to "…continue to be used" provided that the application process for the claim was correctly followed (as it appears to have been in this case).
Nowhere in the Regulation (or indeed in the FSA guidance) does it say that use after January 2007 has to be confined to those territories in which the claim had previously been used. Further, it is hard to see any basis on which the ASA could claim that this additional restriction is necessary in order to give proper effect to the Regulation. On the contrary, the ASA's territory-by-territory approach seems quite at odds with EU principles of freedom of movement of goods and gives a significant unfair advantage in the UK market to UK-based businesses – which can hardly have been the intention of the legislators!