3rd October 2023
The Advertising Standards Authority has upheld complaints on website content concerning health claims made for “All-Bran Prebiotic Oaty Clusters”. The ruling is of particular interest as the requirements for what may constitute a ‘significant quantity’ of a nutrient in order to make an authorised specific health claim for a food were examined.
The website for Kellogg’s breakfast cereals featured an advert for “All-Bran Prebiotic Oaty Clusters” with text that claimed “Prebiotic* goodness to fuel your gut … Prebiotic Oaty Clusters contains natural prebiotic chicory root fibre, helping support digestive health by increasing levels of important bacteria living in your gut, nourishing your gut microbiota“.  See the origin of the quote here.
A complainant challenged whether the health claims contained in the advert complied with the advertising code and asked the Advertising Standards Authority (ASA) to investigate.
The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code) defines health claims as those that state, suggest or imply a relationship between a food, drink or ingredient and health. Additionally, general health claims are defined in the CAP Code as references to general benefits of a nutrient or food for overall good health or health-related well-being. Such claims are acceptable in adverts only if accompanied by a specific authorised health claim.
In its defence, Kellogg’s explained that prebiotics were a non-digestible food ingredient that could deliver beneficial effects on health by selectively stimulating the growth and/or activity of specific health-promoting bacteria in the colon. Prebiotics were substances that fed the microorganisms already present in the gut and selectively increased levels of beneficial microorganisms. They cited national guidance on Regulation (EC) No 1924/2006 (the 2006 Regulation) from the UK, Denmark, and France, the latter of which stated that the term “prebiotic” could be considered a non-specific health claim. “Prebiotic” was therefore a general, non-specific health claim, and had been accompanied in the advert by the specific health claim relating to chicory inulin.
Kellogg’s said the 2006 Regulation stated a specific health claim could be used where the quantity of a product that could reasonably be expected to be consumed provided a significant quantity of the substance to which the claim related. Or, where a “significant quantity” had not been defined in legislation, a significant quantity would be an amount that produced the nutritional or physiological effect claimed. What constituted a “significant quantity” of chicory inulin had not been laid down in legislation. However, given the study on which the claim was based had broken down servings of inulin into three four-gram portions, a portion of the advertised cereal, which provided 45 percent of the required intake of inulin, represented a significant quantity.
However, the ASA upheld the complaint and told Kellogg’s to take the advert down. The ASA considered a general, unfocussed reference to “prebiotic” being good for overall gut health would likely be a general health claim, which would then need to be accompanied by a relevant authorised specific health claim to comply with the CAP Code. The ASA decided that what constituted a “significant quantity” of chicory inulin had been defined with reference to Article 5(1)(b)(i) and (d) of the 2006 Regulation in an opinion delivered by the European Food Safety Authority, which recommended the authorisation of the specific health claim. The opinion had established that 12 grams of the product would produce the physiological effect. The ASA considered that meant a “significant quantity” would be 12 grams of chicory inulin, and that quantity would have to be gained from a reasonable quantity of Kellogg’s product. A box of Kellogg’s granola contained 380 grams of the product, and one 45 gram serving provided 5.4 grams of chicory inulin. That meant consumers would need to eat just over two portions of the granola per day to achieve the claimed health benefit.
The advert stated one portion of the cereal constituted 45 percent of the required daily intake of chicory inulin. However, the ASA noted the advert provided no guidance on where the remaining 6.6 grams of inulin could be found once 5.4 grams had been consumed from the granola. The ASA considered the level of consumption of the product required to achieve an intake of 12 grams and therefore the claimed health benefit was unreasonable, and the wording of the conditions of use for the claim, as well as wording of Article 5 of the 2006 Regulation, meant the specific health claim could only be used where the product(s) referred to in the ad contained at least 12 grams of chicory inulin in readily consumable form, unless further information was provided clearly and prominently to consumers regarding where they might realistically source the additional inulin necessary for the claimed health benefit.
If you need any help keeping on the right side of the ASA and CAP Code, please contact any member of the Food and Drink team here.