Who: The Advertising Standards Authority (ASA) and Arla Foods Ltd (Arla)
Where: United Kingdom
When: 11 March 2020
Law stated as at: 8 April 2020
What happened:
A TV ad for Cravendale milk, one of Arla’s products, made a number of statements that “it’s not milk“. This was a intended to be a joke, made to differentiate Cravendale’s filtered milk from unfiltered milk. However, the ASA received over 100 complaints about the ad, all of which challenged whether the repeated use of the claim “it’s not milk” was misleading, and might be suggesting that the milk is suitable for dairy allergy sufferers. At no point in the ad was it claimed that the milk was dairy-free, and there were verbal and visual confirmations that the product is “fresh milk“.
The ASA concluded that consumers would understand the claim that “it’s not milk“, in the context of the ad, as having a comical double meaning (the filtered milk was being drunk in situations where it would be unusual for milk to be consumed – in a wine glass, at a tennis match and in an art gallery). The ad was therefore deemed to be not misleading.
Why this matters:
In 2017, the European Court of Justice (ECJ) considered whether “milk” and other dairy-associated terms could be used by non-dairy alternatives as a way to describe what they are alternatives to. For example in the case itself, Tofu Town, a German company, described a product as “tofu butter” in order to demonstrate that it is a non-dairy alternative to butter. The ECJ considered this to be misuse of the term “butter”, which was misleading to customers and undermined protections which EU Regulations grant the dairy industry.
This decision by the ASA is an example of a UK regulator considering similar claims, albeit in relation to a dairy (rather than non-dairy) product. The ASA has taken a much more pragmatic approach to what would be considered misleading for consumers than the ECJ did in its Tofu Town decision. This is likely partly because the UK’s dairy and dairy alternative market is developed and well understood by consumers, which means there is less of a risk that a humorous claim that a dairy product is “not milk” is misleading. This could open the door to potential future challenges to the Tofu Town decision, particularly once the UK’s post-Brexit transition period has come to end, as this may make the courts and regulators more willing to diverge from European decisions.
