The TV ad stated: “New Special K Multi Grain Porridge – a delicious blend of oats, barley, rye and delicious berries. With 30% less fat than most other porridges.” On-screen text read: “At least 30% lower than the average fat content of most porridges, as calculated April 2013.”
Kellogg Marketing and Sales Company (UK) (Kellogg) cited the Annex to EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods. The Regulation allowed marketers to make a reduced fat comparative claim if the product in question was compared to a range of foods of the same category, it said.
The product also needed to be at least 30% lower in fat than the average fat content of the products selected as the basis of the comparison, the company added.
It argued it had drawn on a comprehensive database of breakfast cereals to compare a range of foods in the same category with its Red Berry Multi Grain Porridge variant. It had taken the top 75% of all sachet and traditional porridge products and used these as its basis of comparison.
The average fat content of those products was 7.84%, said Kellogg – as a result, it concluded that any products containing 5.5% fat or lower would qualify for a ‘30% less fat claim’. The product advertised was one such product, it said. Advertising advisory body Clearcast agreed with Kellogg’s approach.
The ASA concluded Kellogg had made a crucial error in comparing products in their dry state, before adding milk or water. This breached the terms of Article 5 of EC Regulation 1924/2006 on Nutrition and Health Claims, it said.
“We noted that Article 5 of the Regulation stated ‘nutrition and health claims shall refer to the food ready for consumption in accordance with the manufacturer’s instructions’.”
The ASA also said Department of Health guidance on complying with the Regulation stated: “The Regulation applies to the food ready for consumption in accordance with manufacturers’ instructions (Article 5).
“In our opinion this should only apply where the food could not or should not be consumed otherwise. For example, the requirements of the Regulation would apply to a dehydrated product, only after water has been added in accordance with the instructions.
“Where the product can be consumed without following the manufacturer's instructions, the requirements would apply to the food as sold. For example, breakfast cereal does not have to be eaten with milk and therefore the claim should apply to the cereal as sold and not rely on milk being added.”
In addition, the ASA said Kellogg had selected 36 products from the database out of a total of 307. Top sellers included a number of duplicate products, it said. It pointed out that a total of 12 out of the 36 were also owned by one brand.
“Therefore, whilst we understood that the products selected represented the most popular products in terms of unit sales, we were concerned that we had not seen evidence to show that they were representative of the range of fat content within the food category ‘porridge’, more generally,” it stated.
“In addition, we were concerned that the products selected on the basis of market share could lead to porridges with above average fat contents being over-represented.”