Monday, 10 May 2010

Buttering Up

In an appeal against the judgment of the ASA Directorate where the claims complained of were found to be unsubstantiated, there appeared to be some disagreement between the parties as to what substantiation needed to be provided.

In the original complaint, Unilever had objected to various claims made by Cape Oil and Margarine (Pty) Ltd regarding its Sunshine D Lite product, inter alia that it “...offers more nutritional value: Calcium for building strong bones and teeth, Iron for improving memory and energy, Zinc for strengthening immunity and healthy skin..” . In support of these claims, Cape Oil submitted articles showing that calcium, iron and zinc served the purposes referred to, as well as a letter from a dietician who stated that a suggested 40g serving of the margarine would offer certain RDA allowances of the micronutrients. She concluded that the product, as part of a healthy diet, may help to increase the intake of the micronutrients. The Directorate held that Cape Oil was required to prove that the product, as a whole, would deliver the claimed benefits, not simply provide ingredient-based substantiation. As this was not provided, the claims were held to be unsubstantiated and the complaint was upheld .

Cape Oil believed that the issue in question was whether the micronutrients serve to achieve the benefits referred to, and submitted that it had provided substantiation in this regard. Unilever, however, submitted that what it and the Directorate required was proof that ingredients as used in the product deliver the claimed benefits. While it appeared that a 100g serving of the margarine would deliver the required percentage RDA of the micronutrients, the suggested serving size of 40g would be insufficient to contribute to the claimed benefits (and would not comply with the relevant food labelling regulations).

The Advertising Industry Tribunal considered the claims, how they would be interpreted by the hypothetical reasonable consumer and what their probable impact would be on such consumer. It determined that such consumer would assume that by using the product they would be consuming sufficient quantities to obtain some level of the benefits referred to and that the benefit would be derived from an average serving size.

From the evidence provided, however, it cannot be proven that the claimed benefits would be derived from an average serving size or daily consumption. There are also many other factors which may affect the efficiency of the product to deliver the claimed benefits (including the addition of other ingredients which may negate any benefits of the micronutrients, or the absence of other ingredients which may be required for the absorption of the micronutrients advertised). The claims are held to remain unsubstantiated and are furthermore determined to be misleading, as they create the false impression that by using the product consumers would obtain at least some level of the claimed benefits. The appeal was dismissed.

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