NHCR enforcement

Ribena claim ban leaves ‘little margin for flexibility’: Legal expert

The advertising watchdog ruled that Ribena’s reworded versions altered the meaning of the authorised claims, and therefore breached its code.

Last week’s UK ruling that health claims made on Ribena’s website were ‘exaggerated’ suggests there is not as much flexibility as the industry might have hoped when it comes to rewording authorised health claims to make them more understandable to consumers, according to legal experts.

The UK Advertising Standards Authority (ASA) upheld four complaints in relation to vitamin claims on the Ribena website. GlaxoSmithKline – which sold the Ribena brand to Suntory last year but was responsible for the advertising at the time – had reworded EU authorised claims to, “keep the language understandable and more consumer friendly” and was using the claims to promote its vitamin-fortified Ribena Plus drink.

For example, it changed the EU wording ‘Vitamin A contributes to the maintenance of normal vision’ to ‘Vitamin A...helps keep your vision in tip-top condition’, and, when talking about vitamin C, substituted the EU wording ‘contributes to the protection of cells from oxidative stress’ with the term ‘antioxidant’.

The advertising watchdog ruled that Ribena’s reworded versions altered the meaning of the authorised claims, and therefore breached its code.

“little margin for flexibility”

Sebastián Romero Melchor, partner at K&L Gates’ Brussels office and specialist in EU food and nutrition law, said the ASA had been heavy-handed.  “The ruling seems very strict and leaves little margin for flexibility in the wording of the claims”.

“Whilst the claims regulation prohibits misleading claims, regulators and self-regulatory bodies should take into account that, in cases dealing with potentially misleading labelling, the Court of Justice of the EU applies a kind of de minimis reasoning, and it only decides that consumers are being misled where it considers that the risk of this happening is ‘sufficiently serious or obvious’. I have ‘sufficiently serious’ doubts that this is the case here,” he told Nutraingredients.com.

Another practitioner in the field, intellectual property expert Gareth Morgan, described the ASA ruling as, “an interesting decision, for which one can’t help but feel a little sympathy for GSK/Suntory,” as, “in the process of trying to make approved claims that could be inaccessible to the buying public for Ribena drinks, it has been ruled to have overstepped the mark and misrepresented the health claim as it was approved by EFSA”.

Navigating a minefield

On the plus side, Morgan said the adjudication adds to the growing body of ASA decisions that are helping companies navigate compliance in relation to the EU nutrition and health claims regulation (NHCR), and he points out that not all complaints about rewording have been upheld.

For example, in March this year, the ASA concluded that the wording, ‘with iron to help reduce tiredness and fatigue’ used by Salus in advertising for its Floradix Formula was an acceptable adaptation of the authorised health claim, ‘iron contributes to the reduction of tiredness and fatigue’.

“In this case the change in the text was more subtle and remained more faithful to the approved claim than in the Ribena case,” he said.

“Overall, the message coming out of this ruling is that companies need to remain as faithful as they can to the text of any approved health and nutrition claims otherwise they run the risk of falling foul of the ASA.”

The ruling is here.

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