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August 6, 2012

UK ASA: We Do Care About Whether you Have Milk with Your Cereal

Consumer Advertising Law Blog

The UK's Advertising Standards Authority (ASA) has banned a TV advert for the cereal Weetabix, for misleading customers over its health claims. The advert in question, which was broadcast in July 2011, claimed that the cereal was "Packed with slow release energy to keep you going". Several viewers challenged the claim as they understood Weetabix to have a high glycemic index (GI) rating. Weetabix produced statistics from 2005 from the Food and Agricultural Organization of the UN (FAO) to show that the cereal had a GI rating of 47 when eaten with semi-skimmed milk, which was lower than the British Nutrition Foundation's level for a low GI food (55 and below). They also produced the results of a 2012 study which gave the cereal a GI rating of 41 when eaten with semi-skimmed milk. Clearcast (the UK body that pre-clears most TV ads) said that they had followed advice from a nutritional consultant who said that Weetabix had a low GI when eaten with milk and they took the view that as most consumers would eat the cereal with milk, as was shown in the advert, the claim was supported.

The ASA disagreed, holding that while Weetabix eaten with semi-skimmed milk had a low GI, some consumers might infer from that the claim "Packed with slow release energy" related to the Weetabix biscuit itself and not only when consumed with milk. The ASA said that the presentation of the claim was ambiguous therefore, and in the absence of further qualifying evidence, was likely to mislead.

With the health foods market continuing to grow, this ruling sounds a caution to food manufacturers. As with other advertising, health food claims must be accurate, true and capable of substantiation, but they must also be suitably qualified. Broad claims are unlikely to pass muster with the ASA or the EU's toughened rules on health claims (see the recent EU Regulation No 432/2012 on health claims made on foods), which came into force on 14 June 2012. If a health claim relates to a food consumed in a certain way (e.g. only in accordance with manufacturers’ instructions, rather than as sold), this must be made clear on the face of the advertising.

© Arnold & Porter Kaye Scholer LLP 2012 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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