ASA Rules That Two Candy Companies Cross the Line With Recent Ads

Two candy companies have gotten into trouble with the Advertising Standards Authority over their ads for popular treats. Both the Mars and McVitie Companies cannot claim that two of their products are either low cal or low fat. For the Mars company, the problem arose with an ad for its chocolate confection Maltesers.

The ASA noted the Regulation defined a nutrition claim as including any claim which stated, suggested or implied that a food had particular beneficial nutritional properties because of the energy (calorific value) it provided at a reduced rate.  Nutrition claims were permitted only if they were listed in the Annex and conformed to the conditions set out for them in the Regulation.  One of the nutrition claims listed in the Annex was ‘low energy’.  One of the conditions set out in the Regulation was that low energy claims should not be made for products with more than 40 kcal (170 kJ)/100 g for solids.

We considered the claim “less than 11 calories each”, particularly in an ad that emphasised Maltesers not being as “naughty” as one woman had supposed, was likely to suggest to viewers that a Malteser was low in calories; we therefore considered it was a ‘low energy’ claim.  We understood that, because Maltesers contained 505 calories per 100 g, a ‘low energy’ claim should not have been made.

We took legal advice and understood that the transitional provisions of the Regulation did not apply, because the claim “less than 11 calories each” did fall within the Annex.  The Annex gave definitions of claims, not specific examples of them, and we considered that the claim “less than 11 calories each” fell under the ‘low energy’ definition.  Furthermore, we noted the specific claim “less than 11 calories each” had been in use by Mars only since February 2008.  We considered it was not the intention of the transitional provisions to allow a claim that would otherwise be in breach of the Regulation to continue to be advertised merely because at least one marketer had previously made a similar claim.

We concluded that the words “less than” gave the misleading impression that a Malteser was low in energy.

On this point, the ad breached CAP (Broadcast) TV Advertising Standards Code rules 1.1 (Complying with the law), 5.1 (Misleading advertising), 5.2.2 (Implications) and 8.3.1a (Accuracy in food advertising).

2. Not upheld
We noted Mars’ argument that the strapline “THE LIGHTER WAY TO ENJOY CHOCOLATE” was a trade mark that had been in use since before January 2005 and therefore its use in advertising could not currently be in breach of the Regulation.

We considered that many consumers would be familiar with the claim “THE LIGHTER WAY TO ENJOY CHOCOLATE” as a strapline to ads for Maltesers.  We noted the strapline had existed for 25 years and had been used extensively in advertising in a way that associated it with the concept of floating in the air.  We also noted the ad under investigation showed Maltesers floating in the air at the same time as the on-screen text “THE LIGHTER WAY TO ENJOY CHOCOLATE” was visible.

We considered the claim “THE LIGHTER WAY TO ENJOY CHOCOLATE” was unlikely to be seen as a nutrition or energy comparison with other chocolates or as suggesting that Maltesers had beneficial nutritional properties.  We concluded that viewers were likely to interpret the claim, in the context of the ad, as referring to the weight, size and texture of a Malteser and were unlikely to see it as referring to the low energy content of Maltesers compared to other similar products.  We made no finding on the application of the transitional provision to the strapline.

On this point, we investigated the ad under CAP (Broadcast) TV Advertising Standards Code rules 1.1 (Complying with the law), 5.1 (Misleading advertising), 5.2.2 (Implications), 5.4.6 (Comparative advertising) and 8.3.1a (Accuracy in food advertising) but did not find it in breach.

For McVitie’s the problem arose with an ad for its product Jaffa Cakes.

The ASA noted the Regulation defined a nutrition claim as including any claim which stated, suggested or implied that a food had particular beneficial nutritional properties because of the nutrients or other substances it contained in reduced proportions.  We considered the claim “only one gram of fat” met that definition and was therefore a nutrition claim.

We considered the ads message was that the amount of fat in a Jaffa Cake was much less than expected.  Particularly in light of that context, we considered the claim “only one gram of fat” was likely to suggest to viewers that a Jaffa Cake was low in fat: it was therefore a ‘low fat’ claim.

We noted the Regulation stated that nutrition claims listed in the Annex were permitted only if they conformed to the conditions set out for them in the Regulation.  One of the nutrition claims listed in the Annex was ‘low fat’ and the FSAs Guidance stated that if information was presented in a way that implied it was beneficial to consumers, such as “contains only 10 g of fat”, it would need to comply with the Regulation; we considered that example was very similar to the one made in the ad.  We did not accept McVities argument that the transitional provision applied, because the claim was of a type (low fat) listed in the Annex.  One of the conditions set out in the Regulation was that low fat claims should not be made for products with more than 3 g of fat per 100 g for solids.

We noted Jaffa Cakes contained 8 g of fat per 100 g for solids.

We concluded that the claim “only one gram of fat” misleadingly suggested that Jaffa Cakes were low in fat.

On this point, the ad breached CAP (Broadcast) TV Advertising Standards Code rules 1.1 (Complying with the law), 5.1 (Misleading advertising), 5.2.2 (Implications) and 8.3.1a (Accuracy in food advertising).

Action
The ad must not be broadcast again in its current form.