Who: The Advertising Standards Authority (ASA) and Not Guilty Food Co Ltd t/a The Skinny Food Co (Skinny Food)
Where: United Kingdom
When: 1 February 2023
Law stated as at: 13 March 2023
On 1 February, the ASA published its ruling against Skinny Foods, in relation to an alleged breach of the UK Code of Non-Broadcast Advertising and Direct and Promotional Marketing (CAP Code).
The ruling related to a post featuring video clips of an orange, grapes or an apple alongside a Skinny Foods’ snack pot. Each clip showed the sugar content of the fruit versus the sugar content of the snack pots. It also included the claim:
“Chocolate that contains less sugar than Fruit?! The Skinny Food Co allows you to continue to satisfy your sweet tooth by indulging in one of our delicious chocaholic snack pots. Meaning you don’t have to remove chocolate from your daily diet! [star eye emoji] #SkinnyFoodCo #NotGuilty”.
The post was challenged on the basis that the comparisons between the sugar content of the advertised product and the fruits were comparative nutrition claims which did not comply with the CAP Code.
The rules in relation to nutritional claims are contained in the retained version of the Health and Nutrition Regulation 1924/2006 (which is reflected in the CAP Code). The regulation defines nutritional claims widely as any claims which state, suggest or imply that a food (or drink) has particular beneficial nutritional properties due to the amount of calories, nutrients or other substances it contained, did not contain, or contained in reduced or increased proportions.
Only nutrition claims which are authorised on the Great Britain Nutrition and Health Claims register (which broadly reflects the list in the annex to the regulation) are permitted in marketing communications. In this case, the ASA considered that the claim “Chocolate that contains less sugar than Fruit?!” would be construed as a “reduced sugars” nutrition claim. While this is a permitted claim in the GB register, the reduction in content must be at least 30% compared to a similar product. The ASA considered that chocolate and fruit did not fall in the same category and the claim breached the CAP Code in this regard.
In addition, in order to make the “reduced sugars” claim, the regulation requires that the amount of energy of the product bearing the claim must be equal to or less than the amount of energy in a similar product. In this instance, the Skinny Foods product did not comply with this requirement as the product contained 468 calories and the apples, oranges and grapes contained approximately 286, 215 and 152 calories, respectively. The ASA therefore considered that the ad breached the Code.
Finally, any such claims must also compare the same quantity of food. In this instance, Skinny Foods had compared the sugar content of a 22g portion of its product with the sugar content of 100g of fruit. Unsurprisingly, the ASA was of the view that this aspect of the ad also breached the Code.
In response to the complaints, Skinny Foods did take down the post but also noted that it was common for nutritional information to be given per 100ml or 100g alongside the serving size, which, for the advertised product, was 22g. They said that if they used the ad again they would ensure that the comparison was between the same weight of food.
Why this matters:
This ruling is a good reminder of the various conditions which nutrition claims must meet to comply with the regulation and the CAP Code.
In particular, brands should take care to ensure that they compare products which are in the same categories of food (not meal) or which are alternatives for consumption. The ASA has given a number of examples of comparisons in rulings on what is and isn’t acceptable in this regard. For example, comparing cereal with jam on toast and cereal with croissants has previously been ruled to breach the CAP Code because, whilst both products are consumed at breakfast, they are not in the same category. On the other hand, a comparison between a meat substitute to lean mince beef was considered acceptable because the ad made it clear that the products were an alternative to meat.