The Advertising Standards Authority (ASA) has recently issued a controversial adjudication to Birds Eye in relation to the interpretation of Regulation 1924/2006 on nutrition and health claims. The body asserted that the ads for the manufacturer’s frozen veg range, claiming that the product has ‘30 per cent more vitamins than fresh vegetables’, were misleading and could not be substantiated.
In response, Birds Eye referred to the Favell study, which was published in 1998 by the Institute of Food Research. The report said it was scientifically acceptable to take vitamin C as an indicator of the retention of vitamins overall, because if vitamin C was present, then most others would be too. Birds Eye contended that the study clearly showed that vitamin C levels in vegetables deteriorate shortly after being picked, unless they are frozen.
However, the ASA still maintained that Birds Eye’s claim was misleading. As well as stating that there wasn’t any evidence to suggest that all vitamin levels in the product were the same, the industry body also believed that consumers may think the advert meant all fresh vegetables always had 30 per cent fewer vitamins than frozen ones, regardless of how they were stored or when consumed.
The ASA also declared that Birds Eye did not comply with the criteria for comparative nutrition claims. The reasoning behind this statement is not clear. The warning against making the comparison indicates that the ASA may have decided that fresh and frozen vegetables are not in the same category. This is concerning, as both the Food Standards Agency’s (FSA) and the EU’s guidelines state that the notion of food categories should take into account the occasion and purpose of consumption. Arguably, frozen vegetables are indeed eaten in the same circumstances as fresh alternatives!
Despite not being a judicial body or requiring its members to be legally qualified, the ASA has taken it upon itself to translate this very new and complicated piece of legislation. It may be that it sought advice from the FSA or DEFRA, which would make the decision more palatable given how involved these bodies are with the EU legislative process.
However, this does not overcome the problem that the ASA adjudication process does not have a safety mechanism for appealing decisions built into it, other than the limited option of an independent review, which is both expensive and time consuming.
With cases such as this Birds Eye one, it is unsurprising that many commentators are calling for the ASA to be abolished or at the very least, leave interpreting the law to the courts. However, with government cuts, it is more than likely that the ASA’s remit will continue to expand. This isn’t necessarily a bad thing, but the body must ensure that its processes are fit for purpose and they contain the necessary safeguards, such as the right to appeal.
Hilary Ross is a partner and head of retail at law firm DWF
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