Round-Up of ASA Rulings in Food & Drink Sector (April 2018)

There have been 3 interesting Advertising Standards Authority (ASA) adjudications in April for the food and drink sector;

summary useful points from these rulings concern the following:

• Best approach to substantiating your nutrition claim;
• New interpretation on 'Freshly Baked';
• Time limit approach for Trading Standards legal advice and consumer research;
• Implied Natural claim, strictly interpreted;
• Season, date & time will impact on assessment of socially irresponsible advertising.

1.  Substantiating nutrition claims

This involved a great win for showing detailed substantiation for the valid nutrition claim ‘low in fat’ for pork medallions by the Agriculture and Horticulture Development Board t/a Love Pork (11^th April)

• Assured advice had been obtained from their Primary Authority, Buckinghamshire and Surrey Trading Standards before making the claim;
• The advertiser had supplied 27 samples of pork fillet medallions and pork loin medallions trimmed of fat to an independent UKAS accredited body for testing. These samples were selected randomly from nine supermarket retailers, supplied as sold to consumers and removed of their packaging for blind-testing purposes.
• The testing demonstrated that all of the samples contained no more than 3 g of fat per 100 g. as per the requirements for making a ‘low fat’ nutrition claim under Regulation (EC) 1924/2006.

The ASA considered the testing was sufficiently robust and concluded that pork fillet and loin medallions trimmed of fat met the conditions of use for the permitted nutrition claim “low in fat”.

2.  Interpretation of FSA Guidance & Time Limits for Advice

The ruling concerned 3 issues for Pret a Manger (18^th April.) 

It is particularly interesting as the ASA took two different approaches to applying the Food Standards Agency’s (FSA) “Criteria for the use of the terms fresh, pure, natural etc. in food labelling” guidance, revised July 2008 (Guidance) within one adjudication:

(a)  Freshly baked/baked throughout the day

This was found to mean that that the products listed were cooked rather than heated up in-store and that without the additional time in the oven the products would have been inedible.

The products themselves were half-baked and delivered frozen or delivered as frozen raw dough. Although the FSA’s Guidance, stated that terms such as ‘freshly baked’ ‘baked in store’ and ‘oven fresh’ may mislead consumers into believing that they were being offered products that had been freshly produced on site from basic raw materials, this the ASA pointed out, was based on consumer research carried out prior to July 2008. The ASA felt that consumers would instead be ‘very familiar’ with the high street sandwich shop industry, including products which had been part-baked off-site or delivered as raw dough and baked in store. The complaint that this was misleading was therefore not upheld.

(b)  Time limits on Advice?

‘Good, natural food…Avoiding the obscure chemicals, additives and preservatives…Good, natural ingredients …fresh, natural ingredient … handmade natural food…doing the right thing…Naturally’ - Some of these claims were expressed within a ‘Mission Statement’  that Pret A Manger claimed the complainant (Sustain) had mischaracterised as an absolute objective claims. Advice had been provided by Westminster Trading Standards in 2011 that cleared the Mission Statement for use.

The ASA accepted some claims were within a context of mission or intention however maintained that others fell outside this. The ASA also found that the advice provided by Westminster Trading Standards was 'out of date' as it was 6 years old.

(c)  “Obscure chemicals” equalled to an implied “Natural” Claim

Those terms that fell outside of the Mission Statement included the term ‘Avoiding the obscure chemicals’. The ASA referenced FSA Guidance on the term ‘Natural’ to assess if this particular term was misleading; namely; that ‘Natural’ meant ‘produced by nature, not the work of man or interfered with by man. It is misleading to use the term to describe foods or ingredients that employ chemicals to change their composition or comprise the products of new technologies, including additives and flavourings that are the product of the chemical industry or extracted by chemical processes’.

As Pret A Manger’s foods contained E-numbers which were artificial additives that had been produced by chemical processes, notwithstanding whether the additives were obscure or not, the ASA found those foods did not constitute ‘natural’ foods for the purposes of the Guidance and the claims that implied this were therefore misleading.

3.  Single event, limited time ‘bottomless’ offers for alcohol

A complaint of encouraging excessive drinking and irresponsibility was upheld against Suede Bar and Nightclub (25th April) despite the ‘bottomless’ offer being for prosecco on a single Saturday night (the night before Christmas Eve) for a 2 hour period only (10pm -12pm) for £5 per person, published on their Facebook page. 

The ASA considered that the references to “unlimited” and “bottomless” suggested that there would be an abundance of alcohol available to be consumed in a short period of time. Given that the offer was available within the space of two hours, it was held that the ad was likely to encourage people to drink as much as they could within that short period of time. In addition, the ASA considered some readers might associate Christmas with celebrations that involved drinking alcohol and that by promoting an “unlimited” and “bottomless” prosecco offer to mark the start of the festive period, the ad was likely to encourage people to drink excessively during the celebrations, particularly in the context of the offer being available in a nightclub setting on a Saturday night.

The CAP Code stated that marketing communications must be socially responsible and must contain nothing that was likely to lead people to adopt styles of drinking that were unwise. The CAP Code also stated that marketing communications which included a promotion must not imply, condone or encourage excessive consumption of alcohol. The complaint was therefore upheld.

Suede bar did not respond to the ASA’s enquiries. The ASA was concerned by Suede Bar & Nightclub’s lack of response, which was a breach of CAP Code (Edition 12, rule 1.7 - Unreasonable delay). The ASA reminded the (non)respondent of their responsibility to provide a substantive response to their enquiries in the future.