Under newly in force TV ad rules, foods that are high in fat cannot be advertised when 4-9 year olds are likely to be watching. At 4% fat, ordinary, whole unskimmed cows’ milk classifies as high in fat, so falls foul. Tim Coles mulls the furore over Asda’s milk ads.
Who: Asda & the Food Standards Agency (FSA) and Kraft & the National Advertising Division (NAD)
Where: UK/USA
When: May/June 2007
Law stated as at: 21 June 2007
What happened:
UK
"Are we saying kids shouldn't drink whole milk as part of a healthy balanced diet?" (Rick Bendel, marketing director of Asda, as reported by Brand Republic).
Rick Bendel raised the above issue recently when Asda's whole-fat milk fell foul of the FSA's nutritional profiling guidelines. The new rules only allow 'healthy' foods to be advertised to children and consequently the advertising of the milk has been banned. Asda made the discovery during filming for its latest T.V. advert which is fronted by comedian Paul Whitehouse – star of The Fast Show.
Ofcom brought in the new rules (as previously reported in www.marketinglaw.co.uk) in an attempt to curb rising obesity among children. According to these rules, which govern the advertising of foods high in salt, sugar and fat, Asda's whole-fat milk cannot be advertised when children aged between 4-9 years are likely to be watching T.V., because it has a fat content of 4%. Surprisingly and controversially, olive oil, raisins and cheese also fall foul of the new rules.
Predictably, Asda fired a broadside at Ofcom demanding changes to the system, but Ofcom commented that they, as the regulator, do not have "specific expertise in this area and so relies on the FSA and the experts they [the FSA] bought in to develop this scheme" (BBC). The FSA responded to Asda's claims by stating that, in principle, whole-fat milk could be advertised to children and that it was up to Asda to establish why the nutritional profile of their milk was different from that of the other supermarkets.
Asda countered, "The suggestion that our milk is different from anyone else's is ridiculous. We source our milk from the same dairies as the other UK supermarkets" (BBC) and called into question the value and accuracy of the FSA's profiling model. Asda claimed that they carried out tests on the milk sold by other supermarkets and found that according to the current rules, none of the milk should be advertised to children. Dr Judith Bryans, a director of the Diary Council commented that "The guidance needs to be very, very clear and I don't think it is just at the moment. I think it is detrimental to everybody, this confusion" (BBC).
USA
In a recent ruling, the NAD has upheld the claims made in adverts for a Kraft Foods brand of pizza, the DiGiorno Harvest Wheat Pizza.
The pizza in question was advertised to contain "25% less fat than the leading frozen pepperoni pizza" and as being a "tasty way to enjoy whole grain". In response to the NAD's enquiry, Kraft adduced evidence that the fat content of the leading frozen pepperoni pizza was 13 grams per serving compared to the 9 grams per serving of the DiGiorno Harvest Wheat Pizza and also that the DiGiorno Harvest Wheat Pizza contained a nutritionally significant amount of whole grain.
The NAD accepted Krafts' arguments but noted that, in light of the name of the pizza, "DiGiorno Harvest Wheat Pizza" and the advertising statement "a tasty way to enjoy whole grain" the consumer could reasonably expect that the pizza was made from 100% whole grain. Notwithstanding the fact that they robustly refuted this argument, Kraft acknowledged that the whole grain/whole wheat content of the pizza was not clear and agreed that future adverts and labels should include quantitative information detailing whole grain content.
Why this matters:
The controversy and debate surrounding the introduction of the FSA nutritional profiling model has been thrust into the public arena once again as a result of Asda's much publicised criticism. Although there remains a question mark over Asda's application of the nutritional profiling model, the fact remains that there is considerable confusion regarding the model and its application, and considerable pressure on the authorities to clarify, if not amend it. Ofcom has said that the FSA "would review its nutrient profiling model after a year of use" (BBC) and following Rick Bendel's call for "a rethink and a little common sense" (Brand Republic) to be applied to the problem, it seems an overhaul of the model is increasingly likely.
Meanwhile, as the Kraft case illustrated in the USA, in the current environment of heightened consumer awareness and increased regulatory scrutiny, those advertising food products should keep in mind the need to ensure that the health claims of their products are factually accurate and unmistakably clear.
Tim Coles
Trainee Solicitor
Osborne Clarke, London
tim.coles@osborneclarke.com
