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Always read the label

This is a familiar warning for 'over the counter' (OTC) medicines. But should this now be applied to everyday food products and vitamin supplements? Following the recent spate of health scares, does the consumer need more legal protection before taking a trip to the local supermarket? Legal and brand guru Ardi Kolah investigates.

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I grew up in the 60s which couldn't claim to be the dawn of the information age -- although man did land on the moon in 1969, so I could be wrong about that.

I remember my dad vaguely saying Guinness was good for you... something to do with Vitamin B I think. Apparently mum told me she lived on peanuts and Guinness when she was pregnant so it must've been OK. And of course in the "inch war" it wasn't Mother's Pride we had in our bread box but a bright yellow packet of Slimicia Bread. In fact it didn't taste (or even look) like bread to me. And my parents made me drink lots of Nesquik and Ovaltine as a kid. By the time I reached 35 I had developed lactose intolerance and a waistline.

Those were dangerous times. And by the look of things it's got much worse. Fast forward to last year.

Tetley Tea went through a repositioning of the brand after it had put the Tetley Tea Folk into retirement. It then got acquired by Indian multinational TATA (founded by my Parsee brethren).

On the back of a bit of dodgy science Tetley launched a national multi-million pound advertising campaign "Go on, live a lot -- Tetley is rich in antioxidants that can help keep your heart healthy."

One such ad even carried a three-metre high flashing plastic heart. A bit subtle, but I think we got the message.

Both the Advertising Standards Authority and the Independent Television Commission upheld complaints received from the independent food watchdog The Food Commission that no single drink or food can guarantee heart health.

Storm in a tea cup?

Well Tetley obviously thought so. Last week it unveiled its new £10m campaign, "Ready, Tetley, Go" and has kept the heart device on all its packets of tea - despite the slap on the wrist. So it's likely to find itself in more hot water as new complaints could be forthcoming regarding this continued association with health. Those ridiculous dancing tea folk may need to come out of retirement....

What happened to Tetley is reminiscent of how Ribena found itself at the wrong end of an ASA adjudication a few years earlier. GlaxoSmithKline had to pull posters showing bottles of its Ribena Toothkind brand as bristles on a toothbrush, supported by the strap line: "There is only one soft drink accredited by the British Dental Association" as this implied oral health benefits. Clearly there were none.

It's a risky strategy for a brand owner to position a product on health grounds. But despite such very public se backs, there appears to be an appetite (sorry!) for manufacturers to launch so-called functional foods or "nutraceuticals".

For example, Ian Botham can currently be seen on TV ads frolicking with his two young sons on a beach before tucking into a bowl of Shredded Wheat, claiming it's good for his heart. Low fat Benecol and Flora pro-activ spreads claim to help lower cholesterol levels in the blood. And Danone Actimel and Yakult yoghurts provide "good bacteria" that helps maintain bowel health, etc etc. So far, these brand owners haven't been hauled before the ASA or ITC.

But that may be about to change.

The appliance of science

Even enlisting the support of credible scientific organisations to back such health claims may no longer be a defence against complaints that these products are over claiming health-giving properties.

At the beginning of the 2003, Cancer Research UK took the controversial step of linking up with Beiersdorf UK to endorse its range of Nivea suncare products. The move raised eyebrows amongst other cancer research organisations and there's been public criticism of both Cancer Research UK and Nivea.

The reason for this is that there's evidence that sunscreens may actually increase the risk of skin cancer (not decrease it) by encouraging people to spend more time in the sun in the mistaken belief they're protected from harmful UV rays.

It's a fact that Cancer Research UK itself acknowledged in its own fact sheets not that long ago.

Clearly the charity needs the sponsorship money, but at what price? Surely this type of public endorsement only damages the credibility of scientists who are already mistrusted by the public.

Only last week, the national news headlines were full of the dangers of taking vitamins and mineral supplements -- something which we'd all taken for granted as part of a normal health regime.

According to the Food Standards Agency new research shows that taking too many vitamins or minerals can cause nerve damage, depression and even cancer. And a survey of 34 supplements found that the milligram safety limits for some should be lowered.

The government has said that consumers want healthy choices to be easy choices and so we need accurate, consistent advice.

So should we demand more legal protection before brand owners can make health claims for their products only to withdraw them later?

The legal position

There's a plethora of regulations and Acts that seem to be relevant to marketers of such products: The British Codes of Advertising and Sales Promotion, the ITC Code, the Radio Authority Code, the ASA Code, the Control of Misleading Advertising Regulations 1998, the Trade Descriptions Act 1968, the Food Act 1984, the Food Safety Act 1990 and the Food Labelling Regulations 1996 to name a few.

Food Safety Act 1990

Under Section 8 of the Food Safety Act 1990 it is unlawful to advertise for sale for human consumption any food which fails to comply with food safety requirements and the Act creates an offence of falsely describing food or giving it a label calculated to mislead as to the nature, substance or quality of the food.

Examples of such non-compliance would be if the food is rendered injurious to health, is unfit for human consumption, or is contaminated, or that it would not be reasonable to expect it to be used for human consumption. Such foodstuffs will be deemed harmful to everyone or to a substantial proportion of the community, such as children and elderly people.

In such instances, advertising has a wide meaning under the Act. Section 53 defines "advertisement" as "any notice, circular, label, wrapper, invoice or other document, and any public announcement made orally or by any means of transmitting light or sound".

Section 15 provides that it is unlawful to publish, or be a party to the publication of, an advertisement which falsely describes any food or is likely to mislead as to the nature, substance or quality of the food.

A court would look what an ordinary person would understand the meaning to be or whether an ordinary person would be misled. Advertisements have been found to be misleading due to what the advertiser has chosen to omit despite the actual content being truthful.

Under Section 20 and Section 21 both the brand owner and the advertising/marketing agency must be able to prove that they took all reasonable precautions to avoid committing an offence. Any food advertised must comply with food safety requirements.

A publisher will have a defence if it can show that it received the advertisement in the course of business and had no reason to suspect that its publication would amount to an offence.

In extreme cases a brand owner found guilty of an offence would be liable on indictment to a fine and/or imprisonment for a period not exceeding two years; or on summary conviction to a fine not exceeding the statutory maximum and/or imprisonment for a period not exceeding six months. This should be a sufficient deterrent for brand owners not to make false or misleading claims about their products -- but the evidence suggests that it's failing to deter such a trend.

The Food Labelling Regulations 1996

These regulations control the use of particular names, descriptions and claims in relation to food, mainly in packaging and labelling but in some cases they have relevance to advertising.

The regulations provide that subject to certain exceptions, all food ready for delivery to the ultimate consumer (or a catering establishment) should be marked or labelled with:

  • the name of the food

  • a list of ingredients

  • durability indication

  • special storage conditions or conditions of use

  • name and address of marketer (manufacturer/packer/seller)

  • place of origin (certain cases only)

  • instructions for use (certain cases only)

  • requirements about the manner of marking or labelling the food are set out.

    If there is a claim about the presence or low content of a particular ingredient in a food, the label should provide an indication of the minimum or maximum percentage of that ingredient in the food.

    Dietary products

    Misleading statements as to the fitness for purpose or performance of a dietary product creates a risk of prosecution under the Trade Descriptions Act 1968, while the Food Labelling Regulations 1996 require that the food must be capable of fulfilling any claim made.

    Looking to industry self-regulation, the BCASP, the ITC Code and the Radio Authority Code carry extensive sections regulating the advertising of slimming or diet products.

    Always read the label

    Labels can not make claims that the food has tonic or medicinal purposes and there are also conditions that need to be met if claims about reduced or low energy value, protein, vitamins, minerals, cholesterol or nutrition are made.

    Certain words and descriptions cannot be used in relation to foods.

    For example the word "milk" may not be used as the name of an ingredient where the ingredient is the milk of an animal other than a cow unless the word is accompanied by the name of the animal, and the use of the word as the name of the ingredient complies in all other respects with the Food Labelling Regulations.

    There is certain nutritional information about food that needs to be included on the label even if no nutritional claims are being made about it.

    Further provisions relate to food which is not pre-packed, food which is sold from vending machines, alcoholic drinks, food which includes raw milk, food packaged in gas so as to extend durability and food with sweeteners, added sugar or aspartame or polyols.

    Brand owners and their agencies will continue to try and differentiate their products within a society that is growing more health conscious by the minute.

    While it's laudable for food manufacturers to create better and healthier products, it's another matter to overclaim and provide information which can be misleading.

    Matters are complicated for marketers who want to keep within the right side of the law because of the complex web of regulations and Acts in addition to European Community law in this area (EU Directive 75/106).

    So it's probably not down to more legislation but the enforcement of existing regulations and laws that will make supermarkets a safer place to shop.

    Ardi Kolah is author of 'Essential Law for Marketers' (Butterworth Heinemann, £25.00). Read the review of the book on Brand Republic and order your copy online here.

    If you have an opinion on this or any other issue raised on Brand Republic, join the debate in the Forum here.

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