Danone Nutricia spokesperson Helen Messenger told us the up-for-sale division won’t be appealing the verdict but is, “disappointed by the forensic approach” taken by the UK Advertising Standards Authority (ASA).
“It was not our intention to make any unauthorised health claims in this mailing,” Messenger said. “When the mailing was distributed in July 2013, the claims were put together in good faith based on the information and guidance available at that time.”
She said the firm, which only last month had vitamin D-bone claims for the same Aptamil with Pronutra+ follow-on formula upheld by the ASA, had learned about claim flexibility from the ruling, with its removal of the word ‘normal’ from European Union nutrition and health claim regulation- (NHCR) approved claims evidently enough to push its claims outside the law, or the ASA’s interpretation of it.
It followed a censoring by the ASA in January over a campaign for its Cow & Gate brand.
The ruling also affirmed that the ability of galacto-oligosaccharides (GOS) and fructo-oligosaccharides (FOS) to alter the gut flora was indeed an unauthorised NHCR claim and not a statement of fact as Nutricia had asserted in its discussions with the ASA.
Its marketing had claimed GOS/FOS were, “special carbohydrates encouraging your toddler's friendly bacteria to thrive."
Mike Brady, campaigns coordinator at pro-breastfeeding NGO, Baby Milk Action, welcomed the ASA ruling but wondered why the breach had not been passed to Trading Standards for further action to be taken.
“The ASA has a very patchy record in ruling on misleading formula advertising,” Brady said. “Even when it upholds complaints, there is no requirement for corrections to be printed and no fines, so few people know they were misled and little changes.”
Messenger said the Danone division - hotly tipped for imminent sale to US drug firm Hospira - had heeded the ASA stance and amended ongoing campaigns.
In deconstructing the marketing, the ASA said claim flexibility was fine in principle and it had no issue with the fact Nutricia changed part of the official NHCR wording for omega-3 form DHA (docosahexanoic acid) and visual health.
There it was deemed passable to change the official “contributes to” to “support”.
But taking ‘normal’ out of the official wording, "the normal visual development of infants up to 12 months of age" went too far.
The agency explained: “We considered that removing the word ‘normal’ from the authorised claim meant that it was not clear to consumers that the health effect of DHA related to the normal visual development of babies. We therefore concluded that the omission of the word had changed the meaning of the authorised health claim, and the claim was therefore in breach of the Code.”
It also said there was an implication that omega-6 form ARA (arachidonic acid) could benefit visual health when there was no approved claim for that.
"tailored to support your baby's nutritional needs"?
A claim that the product was, "tailored to support your baby's nutritional needs" was deemed a general claim that required more specific, authorised claims to back them up as required under the NHCR.
This could not come from GOS/FOS since those claims were not authorised, but iron had an authorised claim that it, “contributes to normal cognitive development of children".
But again Nutricia was found to be in breach because it changed, “normal cognitive development” with, “brain development”. This, the ASA said, “suggested a wider range of physical and functional development than ‘cognitive development’.”