Five complaints were made to the ASA over Birds Eye claims in posters and national pres that their frozen veg contained more vitamins than the fresh variety. Boots defended their corner staunchly by reference to the research referred to in the advertising, but did they succeed? Omar Bucchioni reports the regulator’s findings.
Who: ASA and Birds Eye Limited
When: August 2011
Law stated as at: 31 August 2011
Recently the Advertising Standards Authority (ASA) investigated a poster and a national ad for Birds Eye Frozen vegetables, aired between 14 March and 2 April 2011.
a) The poster: it featured a toy bear holding a clipboard seated next to a pack of Birds Eye Field Fresh Broccoli Florets and a text at the top of the poster stated “30% more vitamins than fresh vegetables.* I’ve just read the research.” Vertical text on the side of the ad stated “* D J Favell Study 1998 Ref Vit C. IFR Extra 2010.”
b) The press ad: it featured the toy bear sitting on top of packets of Birds Eye Field Fresh products and was headed “30% more vitamins than fresh vegetables.* Pretty impressive huh?” Vertical text on the side of the ad stated “* D J Favell Study 1998 Ref Vit C. IFR Extra 2010”. Text at the bottom of the ad stated “Only Birds Eye vegetables come with the Field Fresh Guarantee. Our vegetables are picked and frozen within hours so they retain more vitamins than fresh vegetables.”
In both the poster and the press ad, Birds Eye’s website address was in the bottom right-hand corner.
i) Five people complained whether the claim “30% more vitamins than fresh vegetables” in ads (a) and (b) was misleading and could be substantiated.
ii) In addition, four people challenged whether the claim “30% more vitamins than fresh vegetables” in ads (a) and (b) was misleading, because it implied that the advertiser’s freezing process boosted the amount of vitamins present in their frozen vegetables.
What Birds Eye had to say
Birds Eye said they did not think the ads were misleading.
i) Birds Eye said that the ads were meant to educate the public about the benefits of frozen food. The ads included the text “D J Favell Study 1998 Ref Vit C. IFR Extra 2010”, which they had used to support the claims and confirmed that they were referring to vitamin C in relation to the claim. They said, due to the medium, the print ad included more information than the poster, which provided more background to the claim. They added that the ads also referenced the Birds Eye website, where consumers could find further information.
Birds Eye clarified that the claim referred to only those vegetables featured in the campaign (garden peas, broccoli florets and steam bags, which contained peas, broccoli and carrots). They were adamant that the average consumer would understand that the comparison was with the fresh equivalent to the pictured product, rather than an analysis of different vitamin content in different vegetables, and that consumers would think the comparison was with fresh vegetables at a typical point of consumption, following typical transportation, processing and storage by retailers and consumers.
The evidence supporting the claim was in two parts: the Favell study in relation to vitamin C published in 1998, and a study by the Institute of Food Research (IFR) which Birds Eye had commissioned to ensure that the Favell study was still relevant to the current market in terms of the supply chain and more recent academic literature.
In essence, the Favell study used vitamin C to directly compare the nutritional quality of fresh vegetables at various stages of distribution and storage, with the same vegetable commercially quick-frozen and stored deep frozen for up to 12 months.
Vitamin C was chosen as a measure because it was more vulnerable to chemical oxidation and was more water soluble than most other vitamins present in vegetables. Favell considered it was scientifically acceptable to take vitamin C as an indicator of retention of vitamins generally, because if vitamin C was present, most other vitamins would be too.
Birds Eye said the Favell study clearly showed that levels of vitamin C deteriorated over a short period of time after a vegetable had been picked, unless the vegetable was frozen. They said the research could potentially substantiate a much higher figure than a ‘30% less’ claim.
Birds Eye said they commissioned the IFR study to confirm the findings of the Favell study and to ensure that it had not been contradicted by other research.
ii) Birds Eye said that their claim was in relation to vitamin retention rather than vitamin boosting. It was not their intention to mislead or create any form of belief that their frozen vegetables received a vitamin ‘boost’ simply by being frozen.
What the ASA had to say
The claim “30% more vitamins than fresh vegetables” was not substantiated.
The ASA went deep into the Favell study which had solely examined levels of vitamin C in the vegetables and noted that there was no evidence to demonstrate that if vitamin C was present at each point of testing throughout the study, other vitamins found in the vegetables immediately after harvesting always would be too, or that other vitamins would be retained at the same rate as vitamin C.
Actually, for vitamins which were less vulnerable to chemical oxidation and less water soluble than vitamin C, the rate of retention in fresh vegetables could be greater than that for vitamin C, and therefore the percentage difference between frozen and fresh vegetables in relation to other vitamins could be less than the 30% claimed.
The ASA noted the ads included the text “Vit C” in small print, however, they considered that was insufficient to clarify that the claim was based only on vitamin C. Nevertheless, they considered qualifying text that made clear the claim was based only on vitamin C was likely to contradict rather than clarify the headline claim that referred to vitamins in general. They considered the claim was likely to be interpreted as referring to all vitamins.
The ASA noted that the ads also did not make clear which method of storage for fresh vegetables formed the basis of the “30% more vitamins” comparison and that the level of vitamin C retained varied according to the storage method.
Moreover, according to the ASA, the ads did not make clear the timeframe the claim applied to. They therefore considered the claim to be absolute and that it was likely to be interpreted as suggesting that fresh vegetables always had at least 30% less vitamins than their frozen equivalent regardless of how they were stored or when they were consumed. In the absence of clarification of the storage method and timeframe on which the comparison was based, they considered the evidence should be able to demonstrate that fresh vegetables always had at least 30% less vitamins than their frozen equivalent.
In addition, the ASA noted that frozen vegetables had 30% more vitamins than the fresh equivalent, they considered the claim “30% more vitamins than fresh vegetables” had not been substantiated and was misleading.
Notwithstanding the above, the claim “30% more vitamins than fresh vegetables” was a comparative nutrition claim comparing frozen and fresh vegetables. Under EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods such claims could only be made where the food being compared to the advertiser’s product was of the same food category and did not have a composition which allowed it to bear a nutritional claim. However, in this instance the comparator food, fresh vegetables, could bear a nutritional claim, in particular that they were a source of vitamin C, so the claim made in the ads was not a permitted nutrition claim under the Regulation.
Birds Eye did not agree with the ASA interpretation of the Regulation, because they considered that the claim did not seek to state or imply that frozen vegetables had particular nutritional properties, but rather the claim was seeking to highlight the impact that freezing had on vegetables as compared to chilled or chilled/ambient storage.
On this specific point, the ASA considered that a claim regarding differing rates of deterioration of foods under different storage conditions, and the consequent levels of vitamins retained, did not amount to a nutrition claim under the Regulations.
Nonetheless, they considered that the claim implied that frozen vegetables were beneficial because of the amount of vitamins they contained compared to fresh vegetables, and, furthermore, they considered that that was how consumers would interpret the claim.
The ASA considered that the claim compared the nutritional value of frozen vegetables with the nutritional value of fresh vegetables and was therefore a comparative nutrition claim under the Regulation.
It follows that since the claim did not comply with the criteria for comparative nutrition claims set down in the Regulation, the ads breached the CAP Code rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.11 (Exaggeration), 15.1 and 15.3 (Food, food supplements and associated health or nutrition claims).
ii) The claim “Our vegetables are picked and frozen within hours so they retain more vitamins than fresh vegetables”: did not imply that the advertiser’s freezing process boosted the amount of vitamins present in their frozen vegetables.
The ASA considered that the claim made clear that the higher vitamin content in frozen vegetables was due to the rate of retention rather than the addition of vitamins during the freezing process. They considered that although not explicit in the poster that the higher vitamin content was due to retention rather than addition, most consumers would understand that the freezing process did not imbue vegetables with more vitamins but rather delayed their deterioration in comparison to fresh vegetables.
The ASA did not find the ad in breach of the Code on this point.
Why this matters:
Some points to take away from this adjudication:
1. The ASA investigates each and every claim thoroughly, also applying EU Regulations where applicable (i.e. nutrition claims even when the comparison is implied);
2. Evidence to be used to substantiate any claims must be able to show that the claim is true, verified and genuine under any circumstances.
3. Any nutrition claim must be compliant with relevant EU Regulation and no comparative nutrition claims must be made between frozen vegetables and fresh vegetables.
The case is reported on the ASA website.