Kelloggs Special K Bar / C Bird / 7619
Ruling of the : ASA Directorate
In the matter between:
Colin Clive Bird	Complainant(s)/Appellant(s)
Kellogg Company of South Africa (Pty) Ltd	Respondent

08 Dec 2006

Mr Bird lodged a consumer complaint against a Kellogg’s television commercial and packaging promoting its new “Special K Bars”.

The commercial states inter alia, “New Special K Vanilla Almond and Pecan Choc bars still with only 90 calories…”.

The packaging and wrapper contains a claim “90 calories per bar”. Under its nutritional information it states that each bar contains 380kj and 90kcal.

COMPLAINT
In essence, the complainant submitted that the commercial and packaging for the Special K bar are misleading, as the product does not contain 90 calories but 90 kilocalories which is 90 000 calories.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint Clause 4.2.1 of Section II (Misleading claims) was taken into account.

RESPONSE
Attorneys Adams & Adams, on behalf of the respondent, submitted, inter alia, that:

• According to Krause’s Food, Nutrition and Diet Therapy 11th edition, the standard unit for measuring energy is the calorie. The kilocalorie (kcal) is used to measure it scientifically, and it is common global practice for a kilocalorie to be referred to as a calorie.
  
  
• The website www.weightlossrescourses.co.uk states: “It is easy to get confused about calories and kilocalories since, in a nutrition context, values are actually given for the number of kilocalories in a food but referred to simply as calories”. The website also indicates that in nutritional terms, calories and kilocalories are interchangeably used on food packaging.
  
  
• Furthermore, the South African population would be familiar with the term ‘calorie’ and the advertising is consistent with international industry practice.

OPINION FROM DEPARTMENT OF HEALTH
At the request of the Directorate, the Department of Health furnished an opinion.

The Department of Health submitted that in South Africa the unit of measurement for energy is kilojoules (kj) and not calories or kilocalories. In addition, one calorie is equal to 4.184 kilojoules (kj) and that any reference to the product containing only 90 calories would be misleading to the consumer.

A small calorie or gram calorie is equal to 4.185 J (joules), and a large calorie or kilogram calorie is equal to 4185 J (joules) or 4.185 kj (kilojoules). In light of this, the Kellogg’s Special K bar contains 90 kilocalories or 90 000 small calories.

The Department further submitted that the term “calorie” could refer to “calories” or “kilocalories”.

SUBSEQUENT RESPONSE
In response to the opinion obtained from the Department of Health, the respondent submitted that the nutrition information panel on the carton and wrapper clearly displays the energy measurement in both kilojoules (kj) and kilocalories (kcal).

This complies with South African labelling regulations, as it does specify the energy measurement in kilojoules. The use of calories and or kilocalories is a global trend and the respondent has chosen to use the international standard for energy measurement, namely calories and kilocalories.

The respondent also informed the Directorate that it will amend the wording on its Special K Bar wrappers and cartons to state “90 Calories” (upper case C).

FURTHER OPINION FROM ADSA
The Directorate obtained a further opinion from the Association for Dieticians South Africa (ADSA) on the matter.

ADSA submitted that the wrapper should read 90 kcal. However, it is common practice to refer to calories as kilocalories.

It also submitted that the respondent has used the term calories as an alternative to kilocalories because it is a widely used term.

The Directorate posed the following question to ADSA:

“If a consumer is told to follow a specific diet that comprises of a calorie count of 200 calories, would these be kilocalories or calories?”

ADSA replied “It would actually be 200 Kcal = 2000 cal = 8368kJ”.

ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.

The Directorate is essentially tasked with determining whether the reference to “90 calories” creates a misleading expectation with consumers.

The Department of Health confirmed that one kilocalorie (1 kcal) amounts to one thousand calories (1000 cal).

According to information sourced from www.nutrition.gov, and www.physlink.com respectively, there is a distinction between calories and kilocalories, as follows:

• The ‘calorie’ often referred to in food is actually the kilocalorie.
  
  
• 1 kilocalorie is the same as 1 Calorie (upper case C).
  
  
• The dietary Calorie (upper case C) equals 1000 calories.

Accordingly, there is a difference between “calories” and “kilocalories”, as the latter contains 1000 “calories”.

The complainant submitted that the advertising claims that this product contains 90 calories, when the nutritional information clarifies that it actually contains 90 000 calories. It appears to be common cause that this is factually correct.

The respondent elaborated on the difference between these measurements and submitted that it is industry practice to refer to “calories” when actually referring to “kilocalories”. The respondent also submitted that it would amend its advertising to refer to 90 Calories, with an upper case “C”.

While this amendment may possibly address the matter for a technically informed consumer, the hypothetical reasonable person would not be aware of the subtle difference between a “Calorie” and a “calorie”. Accordingly, the Directorate needs to determine the hypothetical reasonable person’s interpretation of the word, whether or not the “C” is capitalised.

In terms of Clause 4.2.1 of the Code, “Advertising should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, or exaggerated claim is likely to mislead consumers”.

Based on the information presented to the Directorate, it appears ex facie that the respondent’s Special K bar contains 90 kilocalories (kcal). The information stated on the nutrition information table clarifies this and lists the energy content as 380 kilojoules, which is consistent with 90 kilocalories.

The Department of Health submitted that the term “calorie” could refer to “calories” or “kilocalories”.

ADSA submitted that it is common practice to talk of calories, while meaning kilocalories. Further information obtained from www.nutrition.gov and www.physlink.com supports this interpretation.

It therefore appears that it is a common industry practice to refer to calories, when in fact indicating kilocalories. While it is true that mathematically there is a significant difference in these amounts, the various opinions indicate that foodstuffs often indicate “calories” as apposed to “kilocalories”, and consumers have become accustomed to this practice.

Furthermore, ADSA clarified that all diets requiring intake of a specified amount of calories, actually refer to kilocalories. In other words, if a consumer wanted to limit his calorie intake to 2000 calories a day, the “calories” are in actual fact “kilocalories”. A practical example would be that a person wanting to only consume 1980 “calories” per day could eat 22 of the respondent’s Special K bars.

Given that it is common industry practice to refer to “calories” as apposed to kilocalories, and given that it appears unlikely that one will find any type of food with an actual 90-calorie (or 0.09 kilocalories) value, the hypothetical reasonable person would not be mislead by the claim “90 calories”.

Furthermore, the nutrition information list on each wrapper and carton packaging sufficiently informs any concerned consumer with special dietary needs whether the product is suitable for their specific requirements.

Given the above, the wrapper, packaging and television commercial for the Kellogg’s Special K Bar does not contravene Clause 4.2.1 of Section II of the Code.

The complaint is accordingly dismissed.