Who: Unilever, Advertising Standards Authority (“ASA”)
Where: United Kingdom
When: 16 October 2013
Law stated as at: 1 November 2013
October saw the ASA adjudicate on two Flora Pro-Activ adverts.
The first ad claimed to show a woman whose cholesterol levels were lowered by the use of Flora pro-activ, under the heading “Real People. Real Results”. A voice-over stated that, “When my doctor told me that my cholesterol was high I started using clinically proven Flora pro-activ, now it’s considerably lower. Smaller test on-screen stated “Flora pro-activ contains plant sterols. A daily consumption of 1.5-2.4g of plant sterols can lower cholesterol by 7-10% in 2-3 weeks as part of a healthy diet and lifestyle. Individual results may vary”.
Other claims in the advert included statements that, “the plant sterols in Flora pro-activ are clinically proven to significantly lower cholesterol” and that “no other food lowers cholesterol more”.
The second ad contained the same claims and had a similar structure, but was based on a different individual.
Two complainants challenged the claim that “no other food lowers cholesterol more”.
The ASA ruled that the ads breached the BCAP Code in two ways:
1. Rewording an authorised health claim
The ASA stated that according to the EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods, which is reflected in the BCAP Code, only health claims listed on the EU Register are permitted in marketing communications. The EU Register contains an authorised claim for plant sterols, as follows:
“Plant sterols have been shown to lower/reduce blood cholesterol. High cholesterol is a risk factor in the development of coronary heart disease.”
In order to use this claim, an advertiser must also provide information that the beneficial effect is obtained with a daily intake of 1.5-2.4g plant sterols, and that the potential effect could be to lower cholesterol by 7-10% in 2-3 weeks. This information had been provided by way of on-screen text.
The ASA ruled that marketers can exercise some flexibility in rewording authorised claims, but only in order to aid consumer understanding.
Unilever had included only the first sentence of the authorised claim in the Flora pro-active advert. Unilever’s view was that the wording in the full authorised claim that “high cholesterol is a risk factor in the development of coronary heart disease” was superfluous, as the risk is well known and would be understood by the average consumer. However, the ASA ruled that the failure to include that wording did not aid consumer understanding and significantly altered the meaning of the authorised claim, and therefore was in breach of the BCAP Code.
2. Claim not justified by the claims authorisation
The ad also contained the claim that “no other food lowers cholesterol more”.
Unilever responded to the complaint by noting that the ad hadn’t claimed that Flora pro-activ was better at lowering cholesterol than any other food; only that no other food could lower cholesterol more. Therefore, it was a claim of ‘top parity’ rather than of outright superiority.
Unilever stated that there were no other foods or ingredients on the market with significant, scientifically proven cholesterol-lowering effects and produced scientific studies in support of this. As a result, their view was that the claim that “no other food lowers cholesterol more” was substantiated.
The ASA however, considered this to be a specific health claim, and therefore only acceptable if it was authorised on the EU Register. As a result, since the claim was not on the EU Register, despite the fact that Unilever introduced scientific evidence backing up the claim, the inclusion of this sentence was also in breach of the BCAP Code.
Complaints upheld. The ads must not be broadcast again.
Why this matters:
Marketers must take special care when making health or nutrition claims in the marketing of food products.
In particular, while the ASA agreed that there is some flexibility as to the ability of marketers to reword the authorised claims under EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods, the implication from this ruling is that such flexibility is likely to be construed very narrowly and that in fact, there is little room for manoeuvre.
Food marketers must therefore ensure that all nutrition or health claims are included on the EU Register, as any other claims will be in breach of the BCAP code, even if there is scientific evidence to back them up.