ASA Adjudication on Leaf Italia SRL

Leaf Italia, maker of Sperlari, Dietorelle, Dietor, Pringles, as well as other brands, was not found in breach of UK advertising regulations (which are similar to those found across the EU) by the ASA. The use of an online game with fruit had been questioned as it suggested that eating Leaf’s candies was equivalent to eating fruit.

Leaf said the purpose of the game was to encourage children to eat fruit, but ASA found that this was unclear. Yet, because individuals exposed to the ads are old enough to differentiate flavored candies from fruit, and would understand the “landmarks” were the flavors of the candies, not actual fruit, and would not imply that the candies had nutritional benefits, ASA decided that the ad ” was unlikely to give a misleading impression of the nutritional and health benefits of the product”.

In our view, it should be noted that ASA has not hesitated to investigate the ads of a business which has its office elsewhere in the EU. On the other hand, ASA seems not to have taken a hard line over online games which are increasingly common, and link a brand of food which is not necessarily in line with recommended nutrient profiles with healthy nutrition. At the same time, as a note of caution, it should be noted that the explanations of Leaf were largely rejected.

Therefore attention is recommended, as other authorities across the EU may take a different stand.

– Luca Bucchini, Hylo’s managing director

The balanced and varied diet in action

Health claims can be made in advertising  only if a statement indicating the importance of a varied and balanced diet (and a healthy lifestyle) is included, according to EC Regulation 1924/2006. Of course, a possibility – when TV commercials are concerned – is to add on-screen text. Increasingly, however, this is at least complemented by showing a balanced meal, generally a breakfast with fruit, juice, milk and, for example, toast. It is a visual statement to the same effect. Though we have seen little use of this approach in the food supplement sector, it is certainly interesting. Recently, UK’s ASA (the Advertising Standards Authority) has upheld a complaintagainst Danone’s Nutricia ad.

While the Authority agreed that Nutricia could not compare their product,  Cow & Gate Growing Up Milk, to other categories of food, it noted “the relevant EC Regulation [Reg. 1924/2006] did not prevent a child being depicted drinking Cow & Gate Growing Up Milk as an accompaniment to a meal, to clearly illustrate the importance of a varied mixed diet in which the product might be one element“. At the same time, a compaint has not been upheld against Ferrero’s Nutella saying on the importance of a varied diet statement: “the ad showed each child eating only one slice of toast with Nutella and that the images also included other breakfast items such as fruit juice, milk and cereal”.

A recent example, in this respect, can be viewed in Italy with Danone’ Danaos ad which, regardless of other comments, shows a balanced breakfast, with juice being poured, etc.

– The Sports Nutrition Team –

Italy’s AGCM to EC: Claims Regulation not enough, European guidelines for health claims in foods needed

The Italian authority for misleading advertising, which is also the antitrust authority wrote to European Commission to bring about a discussion about the regulation for the use of health claims in foodstuffs. The letter itself has not been made public.
At present the use of any health claim is allowed under the stringent conditions of Regulation 1924/2006, which involve the European Food Safety Authority‘s scientific assessment. AGCM believes that this is not sufficient and asks guidelines at European level for companies to ensure accurate and complete information to consumers.
According to AGCM, health claims related to food products, already approved by the Commission after EFSA’s scientific examination, can be used in an instrumental way by companies. Health claims- says the president of AGCM in a press release used in advertising sometimes tend to emphasize disease or to trivialize health problems; they do not provide correct information to consumers but rather exaggerate the effectiveness of the products.
AGCM also reminds that even in the presence of health-claim authorized by the European Commission, EU legislation requires that the use of nutrition and health claims “cannot be false, ambiguous or misleading”. This is what often happens, according to the AGCM, due to the improper use of both text and images by companies.

“It is imperative that consumers are protected from misleading advertising.” said Luca Bucchini, Managing Director of Hylobates Consulting, in a statement “The Nutrient and Health Claims Regulation is stringent and comprehensive in its requirements, and has been applied in a very stringent manner by EFSA. It creates a framework which protects consumers and provides a degree of certainty to food businesses, which did not exist before. As a consequence, we are concerned that further guidelines may create more, not less, confusion – continued Bucchini –  Evaluation of claims should be science-based; the Regulation has clarified that benefits of a substance can be claimed for a food, and that, within clear rules, a substance or food can claim a specific benefit that other foods in the diet don’t have. We hope that AGCM will accept these and other well-established scientific and legal principles and will work within the existing legal framework”

Republic of San Marino and Italy: protocol of cooperation on food supplements is being implemented

The General Direction of Food and Nutritional Safety (DGSAN) of Italy and the Department of Prevention of the Institute of Social Security for the Republic of San Marino (DPRSM) are now working together to facilitate cooperation in product and manufacturing conformity to EU community legislation. The protocol, which recently entered into force, specifically looks at the entrance of new products to the market and the verification of manufacturing facilities and processes situated in San Marino.

Before this accord took place, a food supplement importer residing in San Marino, which is not a EU Member State, had to notify the Italian Ministry of Health of the product that was to be imported and sold in Italy. What has changed is that now, the same Italian importer that resides in San Marino must add “RepSM” in the subject line of the notification form (found on the website: www.salute.gov.it). Also, if a note of reply is requested from the Italian Ministry of Health, the same “RepSM” must be present in the subject line. All communications to and from the Italian Ministry of Health will also be forwarded on to the DPRSM. If food supplements have a positive review from the DGSAN, the product will be included in the specific registry on the website located above.

It is important to note that both offices will be collaborating in the area of misleading advertising that does not conform to EU / Italian standards. DGSAN will make note of any advertising that is misleading / illegal on websites located in San Marino and will communicate this to the DPRSM and the DPRSM will do the same for Italian websites.

The second major impact of this collaboration is the control of production facilities by Italian authorities (DGSAN) with assistance from the DPRSM within San Marino. If an inspection takes place and the production facility is given recommendations on how to conform to legislation, the DPRSM will verify that the recommendations have been implemented. If and when they have been put into place, the DPRSM will communicate to the DGSAN to close the procedure on said production facility.

In practice the protocol, which enforces a previous agreement, means that the Republic of San Marino is relying on the Italian authorities, regulations and administrative practices for the assessment and management of food supplements and dietetic products, and that there should be no differences in the products marketed in the two countries.

While the general procedure is relatively straightforward, specific situations should be analyzed on a case-by-case basis, especially for sports nutrition products.

The Sports Nutrition Team

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