Sunshine D Lite / Unilever / 14790
Ruling of the : ASA Appeal Committee
In the matter between:
Unilever South Africa (Pty) Ltd	Complainant(s)/Appellant(s)
Cape Oil and Margarine (Pty) Ltd	Respondent

20 Jan 2010

Unilever lodged a competitor complaint against the packaging, in-store advertising and a television commercial for Sunshine D Lite medium fat spread.

The packaging contains, inter alia, the following claims,

• “Sunshine D Lite is rich in vitamins A, D, E & Omega 3 and 6 essential fatty acids which helps maintain a healthy heart”;
  
• “Now with added Calcium, Iron & Zinc”;
  
• “Sunshine D Lite now offers more nutritional value:
  Calcium for building strong bones and teeth
  Iron for improving memory and energy
  Zinc for strengthening immunity and healthy skin”.

The Brand Power television commercial contains, inter alia, the following claims”

• “It’s now enriched with calcium, iron and zinc, minerals known to strengthen bones, build immunity and improve memory”;
  
• “We all enjoy great tasting margarines” and “For a margarine that offers value, versatility and a taste your family will love, switch to Sunshine D”.

The point of sale advertisement states, inter alia, “With added Calcium, Iron and Zinc to help improve memory, strengthen immunity and build strong bones, you can be assured you’re providing your family with nature’s best.”

COMPLAINT
The complainant, in essence, requested substantiation from the respondent for its claims, and argued that the television commercial is misleading because it incorrectly refers to the featured product as “a margarine”, when it is in fact a spread.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:

• Section II, Clause 4.1 – Substantiation

• Section II, Clause 4.2.1 – Misleading claims

RESPONSE
Attorneys Adams & Adams, on behalf of Cape Oil and Margarine, submitted, inter alia, that it will stop using the claim, “Sunshine D Lite is rich in vitamins A, D, E & Omega 3 and 6 essential fatty acids which helps maintain a healthy heart”. It undertook not to use the claim again in future.

In addition, the respondent submitted that the Brand Power television commercial is not intended to be flighted again in its present form. It undertook not to use references to “margarine” in relation to medium fat spreads again in future.

The respondent submitted independently verified evidence in support of the disputed claims. The evidence will be dealt with in more detail below.

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

“Sunshine D Lite is rich in vitamins A, D, E & Omega 3 and 6 essential fatty acids which helps maintain a healthy heart”

The complainant requested proof that Sunshine D Lite maintains a healthy heart in the quantities that the hypothetical reasonable person would eat.

The respondent gave a voluntary undertaking to stop using this claim and stated that it will not use the claim again in future.

The ASA has a long standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, that undertaking is accepted without considering the merits of the matter.

The respondent’s undertaking appears to address the complainant’s concerns and there is therefore no need to consider the merits of the matter at this time.

The undertaking is accepted on condition that the claim in its current format is withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and is not used again in future.

The respondent’s attention is drawn to Clause 15.5 of the Procedural Guide.

References to “margarine”

The complainant argued that the Brand Power television commercial is misleading because it incorrectly refers to the featured product as “a margarine”, when it is in fact a spread.

The respondent undertook not to use references to “margarine” in relation to medium fat spreads again in future.

The respondent’s undertaking appears to address the complainant’s concerns and there is therefore no need to consider the merits of the matter at this time.

The undertaking is accepted on condition that the television commercial in its current format is withdrawn within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and is not used again in future.

The respondent’s attention is drawn to Clause 15.5 of the Procedural Guide.

Claims substantiation
Clause 4.1 of Section II states, inter alia, that an advertiser must hold documentary evidence to support all claims that are capable of objective substantiation. In addition, it clarifies that such documentary evidence shall emanate from or be evaluated by an independent and credible expert in the particular field to which the claims relate.

Clause 4.2.1 of Section II states, inter alia, that advertisements should not contain anything which is likely to mislead the consumer.

The complainant submitted, in essence, that the respondent’s claims are intended to communicate a benefit achieved from the presence of certain nutrients in the product. It requested proof that Sunshine D Lite builds strong bones and teeth, improves memory and energy and strengthens immunity and healthy skin in the normal quantities that the hypothetical reasonable person would eat.

The respondent submitted that the nutritional information on the packaging of the product, read with the legislation of this country, indicates that a product that contains 15% of the RDA of the specific products of concern in this matter is present in quantities that the reasonable consumer requires in order to provide a benefit. In law and in fact, it is efficacious if that amount is present, as in the respondent’s product. All manufacturers must comply with this. Given that there is statutory compliance and that the products are in efficacious amounts, the only real issue is whether or not calcium serves to build strong bones and teeth, iron improves memory and energy, and zinc strengthens immunity and healthy skin. It submitted several published documents in support of this, as well as a report from a registered dietician.

The Directorate notes that it is not a technical or scientific body, and as such cannot interpret the information submitted to determine whether or not it sufficiently verifies the statements made. The Code therefore requires the respondent to submit substantiation that complies with the requirements stipulated in Clause 4.1 of Section II. In essence, what the Directorate requires is verification from an independent and credible expert in the field to confirm that the respondent’s product, as it is sold, is able to deliver the claimed results.

It is trite that substantiation should relate to the actual product being advertised, and the ASA will not accept ingredient-based substantiation for general claims about the product as a whole (see, for example, Aquafresh Iso-Active / Colgate Palmolive / 14496 (11 January 2010) and Memoregain for Your Brain / HA Steinman / 14800 (18 January 2010)).

The Directorate agrees with the complainant that the respondent’s claims of building strong bones and teeth, improving memory and energy, and strengthening immunity and healthy skin were intended to be made for the product as a whole, and would be understood as such by the hypothetical reasonable person. Accordingly, the respondent needs to prove that its product will deliver the claimed benefits.

The respondent submitted several published articles and documents to show that calcium, iron and zinc deliver the claimed benefits. It further submitted a report from a registered dietician, Ms Megan Pentz-Kluyts, to verify this. The Directorate notes, however, that none of these documents deals specifically with the respondent’s product.

It is also noted that Ms Pentz-Kluyts states, inter alia, “Sunshine D Lite as part of a healthy diet may help to increase the intake of these micronutrients.” She does not, however, confirm that Sunshine D Lite:

• builds strong bones and teeth;
• improves memory and energy; and
• strengths immunity and healthy skin.

Accordingly, there is no independent expert verification that the respondent’s product will deliver the claimed benefits.

The respondent’s claims are therefore unsubstantiated and in breach of Clause 4.1 of Section II.

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

• Withdraw the claims;
  
  
• The process to withdraw the claims must be actioned with immediate effect on receipt of this ruling;
  
  
• The withdrawal of the claims must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
  
  
• The claims may not be used again in their current format in future.

In light of the above, it is not necessary to consider Clause 4.2.1 of Section II in relation to these claims at this time.

The complaint is upheld.