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Product: Food & Non-Alcoholic Beverages (Follow-On Milk)
Advertiser: Nestle Nutrition
ASAI Code 7th Edition: 2.4(c), 4.1, 4.4, 4.9, 4.10, 8.33(a)
A television advertisement for SMA Advanced Follow-On Milk featured individual shots of mothers with their babies. The advertisement also featured imagery of neural pathways and imagery of the properties of the product, 2’FL and LNnT.
The voiceover of the advertisement stated:
“The effect a baby has on their mother is fascinating. Transferring antibodies, forging neural pathways to help keep her baby safe. It's this unwavering care that's inspired our SMA Advanced Follow-on milk. Ireland's first follow-on formula with 2'FL and LNnT. Enriched with Vitamin D to help the normal function of babies’ immune system.”
A footnote appeared on screen with several statements made at various stages throughout the advertisement:
From the beginning of the advertisement the following statement appeared on screen for 7 seconds:
“IMPORTANT NOTICE: Breast milk is best for babies and breastfeeding should continue for as long as possible.”
Followed by the following statement which appeared on screen for 13 seconds:
“SMA Advanced Follow-On Milk is for babies over 6 months, as part of a varied weaning diet. Not intended to replace breastfeeding.”
Followed by the following text which appeared for 7 seconds:
“Vitamin D helps support the normal function of a baby's immune system.”
The final shot of the advertisement featured an image of the product pack with the wording:
“SMA Advanced Follow-on Milk. For babies 6 months+
Science inspired by nature.”
The complainant objected to the advertisement on two grounds:
The complainant considered that the statement “transferring antibodies” without stating that the transference of antibodies happened through breastfeeding was misleading. The complainant said that antibodies made in breastmilk were specific to the individual baby and were not found in formula milks. The complainant considered that the advertisement had implied that antibodies were found in formula milks and that therefore, the advertisement was using the unique advantage of breastfeeding to promote the formula product.
The complainant considered that the advertisement had referred to the immune system several times and that by doing so, had implied that the advertised product would protect a baby’s immune system. The complainant said that breastfeeding was well known to be the best protection for babies’ immune systems being far superior to formula milk when it came to fighting infections and protecting immune systems. The complainant did not consider that there was any scientific basis for the implied claim that the follow-on formula would protect a baby’s immune system. The complainant said that if a breastfeeding mother of a 6-month old baby decided to stop breastfeeding and switched to the advertised follow-on formula on the basis of the advertisement, then that baby’s immune system would be less protected.
The advertiser replied to the issues raised by the complainant.
The advertisers stated that the advertisement had referred to the “transfer of antibodies” and the “forging of neural pathways” as examples of the fascinating effect a baby had on the mother. They said that they did not claim that their formula milk reproduced those effects; instead, they said that these examples of unwavering care had inspired them.
They said that the advertisement had then referred to the fact that the product contained Vitamin D for bone development as well as 2’FL and LNnT, which were one of the latest approved novel ingredients for follow-on milks (Commission Regulation (EU) 2017/2470(1), as amended). They said that they were examples of how they were using that inspiration to continuously improve their product. They said that they believed that consumers would understand the message as it was intended and would not be misled into believing that the product reproduced the effects referred to above, namely the “transfer of antibodies” and the “forging of neural pathways.
The advertisers said that the advertisement featured an approved health claim for Vitamins D as both a voice-over and as on-screen text. They said that the health claim for Vitamin D had been gazetted and was an approved claim under Commission Regulation (EU) 2016/1389 of 17 August 2016(2)(3). They said that the use of a health claim was permitted if the quantity of the product that can reasonably be expected to be consumed provided a significant quantity of the nutrient or other substance to which the claim relates. and for vitamins and minerals, a significant amount was 15% of the daily recommended amount.
The advertisers said that they considered babies aged between 6 to 12 months consume around 500ml to 600ml of follow-on milk per day and the amount of Vitamin D present in 500ml of the product was 4.5μg, which amounted to 64% of the reference intakes set out in Annex VII of Regulation 2016/127/EU on infant and follow-on milk. They said that their reference to Vitamin D in the Advertisement was therefore compliant with relevant regulations.
Finally, they reiterated their commitment to upholding their compliance obligations and at the same time striving to create the best products for the benefit of babies. They said that they completely agreed with the complainant’s sentiment that breastfeeding was best for babies, which they considered was reflected and reinforced by both the voice-over and on-screen text featured in the advertisement.
The Executive reviewed the EU Register on Health Claims and noted that the claim regarding Vitamin D contributing to the normal function of the immune system could be made if the product contained at least a source of Vitamin D. The Executive also reviewed documentation on Directive 90/496/EU and noted that vitamins and minerals could only be declared in a food if they were present in significant amounts and that a significant amount was classed as 15% of the Recommended Daily Allowance (RDA).
(3)The approved health claim is “Vitamin D contributes to the normal function of the immune system in children.”
The Complaints Committee considered the detail of the complaint and the advertisers’ response.
Issue 1 - Upheld:
The Committee noted that the advertisement had referred to the effect a baby had on their mother followed by a reference to the transferring of antibodies and the forging of neural pathways, stating that it was this care that had inspired their product. While the Committee noted that the advertisement had not stated that the follow-on formula did transfer antibodies or forge neural pathways, it had said that this care had inspired their product which then was described as having several properties including 2’FL and LNnT with no explanation included in the advertisement as to what 2’FL or LNnT were. In the light of this the Committee considered that it was reasonable to consider that consumers could interpret the advertisement as implying that the product did ‘transfer antibodies’ and/or ‘forge neural pathways’, rather than that the care between a mother and their baby had inspired their product. In the circumstances, the Committee considered that the advertisement was in breach of Sections 4.1 and 4.4 of the Code.
Issue 2 – Not Upheld:
The Committee noted that the complainant considered that the advertisement had implied that the follow-on formula protected a baby’s immune system and that the advertisers had stated that they had made a claim that was an approved health claim as per EU Regulations.
The Committee noted that the spoken claim in the advertisement was “Enriched with Vitamin D to help the normal function of babies’ immune system” and the on-screen text was “Vitamin D helps support the normal function of a baby's immune system”.
The Committee noted that the complainant considered that the advertisement implied that the product protected babies’ immune systems and that there was no scientific basis for this implied claim. The Committee noted however that the claim made in the advertisement was that the product supported the normal functioning of a baby’s immune system and that the advertisers had provided evidence to show that their claim was an approved health claim in compliance with EU Regulations. The Committee did not consider that the advertisement went beyond the approved health claim and in the circumstances, the Committee did not consider that the advertisement was in breach of the Code.
Action required: The advertisement must not reappear in its current form.