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Kelloggs / Bokomo Foods / 2816
Ruling of the : ASA Directorate
In the matter between:
Bokomo, A Division of Pioneer Foods (Pty) Ltd	Complainant(s)/Appellant(s)
Kellogg Company of South Africa (Pty) Ltd	Respondent

05 Jan 2006

Attorneys Jan S. De Villiers, on behalf of Bokomo, lodged a competitor complaint against the packaging and television commercial for Kellogg’s Kids Cereals range of products.

The television commercial contains, inter alia, the following claims:

“Something you may not know is that Kellogg’s Kids Cereals are a healthy part of a balanced breakfast. They are low in fat, preservative free, and contain the goodness of real grain plus 9 vitamins and iron.”

The text at the end of the commercial reads “A healthy part of a balanced breakfast.”

The packaging contains, inter alia, the following claims:

“KID-SENTIALS ™
v VITAMINS
v IRON
v CALCIUM FROM MILK *
For Healthy Mind and Body Development”

COMPLAINT
The complaint will be dealt with in detail below.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
According to the complainant, the following clauses of the Code are relevant:

• Clause 2 of Section II – Honesty;

• Clause 3.3 of Section II – Legality;

• Clause 4.1 of Section II – Substantiation; and

• Clause 4.2.1 of Section II – Misleading claims.

RESPONSE
Attorneys Adams & Adams responded to the complaint on behalf of the respondent.

The response will be dealt with more fully below.

OPINION
In that the complainant alleges that the advertising in question is in contravention of the regulations to the Foodstuffs, Cosmetics and Disinfectants Act (Act No 54 of 1972) (the Act), the Directorate obtained an opinion from the Department of Health, in accordance with Clause 7 of the Procedural Guide.

The opinion will be dealt with more fully below.

ASA DIRECTORATE RULING
The ASA considered the relevant documentation submitted by the respective parties, as well as the opinion obtained from the Department of Health.

The complainant essentially raised two issues:

1. The product claims to be “healthy”; and

2. The product claims that it contains “CALCIUM FROM MILK”.

1. The Healthy issue

The claims in dispute are:

The voice-over television commercial claim “Something that you may not know is that Kellogg’s Kids Cereals are a healthy part of a balanced breakfast. They’re low in fat, preservative free and contain the goodness of real grain plus 9 vitamins and iron”;
The on-screen television commercial claim “A healthy part of a balanced breakfast”; and
The packaging claim “For Healthy Mind and Body Development”.

The complainant took issue with these claims on several bases:

i. The use of the word “healthy”

In the television commercial, both the voice-over and the tag line state that Kellogg’s Kids Cereals are a healthy part of a balanced breakfast; and on pack the “…Healthy Mind…” claim appears.

The complainant submitted that these claims contravene the regulations to the Act.

The respondent denied that the use of the word “healthy” in the context in which it is used in the television commercial and on packaging is in breach of the Act. The respondent submitted that the use of the word “healthy” does not suggest that the products have specific health-giving properties. Rather, “healthy” is used in an adjectival sense as a reference to “wholesome”. The respondent further submitted an opinion from Ms Pentz-Kluyts, a registered dietician, stating that to call the Kids Cereals a healthy part of a balanced breakfast is reasonable and factually correct.

The Directorate obtained an opinion from the Department of Health regarding the use of the word “healthy” in the respondent’s advertising.

In the opinion of the Department of Health, “Currently, in R2043/1993, the word ‘healthy’ is not permitted … It is our opinion that these products should not be regarded as ‘healthy’ or ‘part of a balanced breakfast’ due to the high sugar content average and low fibre content average of the product … Therefore it is our opinion that the claims on being ‘balanced’ or ‘part of a balanced breakfast’ do not comply with the required Legislation”.

For this reason, the claims that the Kids Cereals range is healthy are in breach of Clause 3.3 of Section II of the Code. It is therefore not necessary to consider the remainder of the clauses at this time.

In light of the above, the respondent is required to:

1. Withdraw the “healthy” claims in their current format;

2. The process of withdrawing these claims must be actioned with immediate effect;

3. The process of withdrawing these claims must be completed within the deadlines stipulated in Clause 15.3 of the Procedural Guide; and

4. The “healthy” claims may not be used again in future.

ii. Omission of high sugar content

The complainant referred the Directorate to website extracts and a registered dietician’s report by Ms Deborah Jacobson in support of its submissions that the product is high in sugar. Ms Jacobson also states that the Kid-Sentials logo on the packaging will mislead the consumer into believing that every ingredient in the product is healthy.

The respondent denied that its product is “very high in sugar” and made various submissions relating to the sugar content of the product. In its opinion the Department of Health accepted that the products have a “high sugar content average”.

Furthermore, the respondent advised that the Kid-Sentials logo no longer appears on the new packaging.

The respondent also relied on the report by Ms Megan Pentz-Kluyts to support its submission that sugar is necessary in a child’s diet. Ms Pentz-Kluyts argued that the sugar added to these cereals assists to lower the glycemic response; and that sugar is not “the villain” and “pre sweetened cereal affords children to eat breakfast, rather than skip the most important meal of the day and consequently lose out on much needed nutrients.”

There is nothing before the Directorate which places Ms Pentz-Kluyts’ independence in doubt. In addition, the Directorate accepts that Ms Pentz-Kluyts is credible and that she is a qualified expert in the relevant field.

The fact that the respondent omitted to reflect the sugar content does not necessarily mean that consumers are misled. Merely by looking at the ingredient list on the side of the box, consumers would see that the product contains sugar.

In light of what Ms Pentz-Kluyts has said about sugar, it is not the case that the respondent’s omission to explicitly mention that the product contains sugar (other than in the ingredient list) is misleading or exploiting consumers, as the sugar content of the cereals does not ex facie nullify the product benefits.

The omission is therefore not in breach of either Clause 2 or Clause 4.2.1 of Section II of the Code.

iii. The claim “Kellogg’s Kids Cereals are low in fat, preservative free and contain the goodness of real grain plus 9 vitamins and iron”

The complainant submitted that the above claim, which features in the television commercial, is misleading.

The respondent relied on the report by Ms Pentz-Kluytz. The salient aspects of Ms Pentz-Kluyts’ report in this regard are summarised as follows:

Kellogg’s kids cereals are enriched with 20% of the recommended dietary allowances (RDA) for nine essential vitamins and iron and helps to make a significant contribution to a child’s overall daily nutrient intake, facilitating optimal mental and physical development and performance.
Kellogg’s kids cereals provide 20% of the RDA for iron, vitamin A, folic acid, and other B6 and B12 vitamins; the vitamins identified as key nutrients for growth of the body cells which translates to a healthy body and mind.
An enriched breakfast cereal like Kellogg’s kids cereals can therefore make a significant contribution to one’s overall daily nutrient intake.

Ms Pentz-Kluyts specifically confirmed that the products are low in fat, preservative free, contain the goodness of grains and 9 vitamins and iron.

The claim that the “ Kids Cereals are low in fat, preservative free and contain the goodness of real grain plus 9 vitamins and iron” is therefore shown to be true and are not in breach of Clause 4.2.1 of Section II .

2. The Calcium from Milk issue

The complainant submitted that the claim “calcium* from milk”, as it appears on the respondent’s packaging, is misleading, as milk is merely a suggested way of serving the product and all children will therefore not necessarily consume the calcium referred to. The complainant submitted a report from Ms Jacobson, who stated that some consumers do not consume their cereal with dairy milk, as some mix their cereal with juice or alternative milk drinks, which may not contain calcium.

The respondent denied that its kids cereal packaging is misleading insofar as the word “calcium” is used on the packaging.

The respondent submitted that the Kid-Sentials trilogy includes “vitamins, iron and calcium from milk” and stated that “calcium” is always qualified by the words “from milk” and that this is clear on the packaging. The asterisk next to the words “from milk” draws the consumer’s attention to the fact that milk must be added for this benefit to be enjoyed. The respondent further submitted that nothing turns on the size of the words “from milk,” as size was merely to accommodate space in the logo as a whole.

In addition, the respondent submitted that the new packaging clearly indicates that milk plays a role in a balanced breakfast and illustrates the benefits of consuming milk with cereal. The new packaging reads “cereal + milk + fruit = a healthy part of a balanced diet”. The respondent submitted that this educative approach is furthermore substantiated by the Kellogg consumer graph. The graph illustrates the number of consumers who consumer cereal with milk and shows that 97% of consumers mix cereal with milk and 3% eat them with yoghurt.

Furthermore, the respondent has changed its packaging. It is therefore unnecessary to consider this claim in the context of the old packaging.

The Directorate is of the opinion that the new packaging makes it sufficiently clear that the cereals must be consumed with milk for the full nutritional benefits to be derived. The words “cereal + milk + fruit = a healthy part of a balanced diet” make it clear that milk and fruit need to be added.

The claim is therefore not in breach of Clause 4.2.1 or Clause 2 of Section II of the Code.

The complaint is partially upheld.