Nutricia Ltd - owners of Cow & Gate - seem to have got the formula for their ad wrong this week as the ASA upheld a ruling against them for confusing between infant formula and follow on formula, and for making an unauthorised health claim. 

An audio-only ad for Cow&Gate Baby Club was heard back in May 2021 before an episodes of a podcast by Chris and Rosie Ramsey. The advert was a conversation between the pair discussing ‘the fast growing trend around the world for formula milks made with A2 protein milk’. The pair discussed what A2 protein milk is and what ‘makes it so special’; the advert also included the claim that A2 milk protein ‘may be easier to digest than regular cow’s milk’.

Complaint

1. Three complainants challenged whether the ad breached the advertising code as it confused between infant formula and follow-on formula.
2. The ASA also considered whether the claim ‘A2 protein milk may be easier to digest than regular cow’s milk’ was an unauthorised health claim. 

Investigation

Nutricia responded stating the ad was for the C&G Baby Club, rather than for the Cow and Gate brand itself or any of their products; they stated that as there were no references to the brand itself or any of their products, the ad could not confuse between infant formula and follow-on formula. They argued that the C&G baby club provides information and education to parents around pregnancy and the first few years of life – the intention of the ad was therefore to simply share educational info on infant feeding and A2 protein milk. 

Nutricia felt neither the legislation around advertising infant and follow-on formula nor the CAP Code itself included any provisions relating to the advertising of baby clubs such as this, or unbranded or non-product-related ads. They therefore thought this allowed for the sharing of information on infant formula and feeding in general. In their view, the ad adhered to the Infant Nutrition Industry Code which stated emails to parents or carers of health infants as part of a company baby or parenting club should not include the product name of follow-on formula, unless the recipient had advised that their child was at least 6 months old. 

They concluded that the use of generic term ‘formula milk’ was used to refer to the baby milk category as it was a widely used term that was easily understood by the general public – it was not intended to conflate follow-on milk with infant formula. 

In relation to the claim around digestion, Nutricia said the focus of the ad was to discuss the emerging trend for formula milks made with A2 protein milk and referred to two studies they felt substantiated the claim ‘A2 protein milk may be easier to digest than regular cow’s milk.’ They said that in their view, because the purpose of the ad was to promote the C&G baby club and not the Cow and Gate brand or products, the claim made did not fall under the requirements of the CAP Code relating to health claims made about foods.

Decision

The ASA upheld both issues. 

CAP Code rule 15.10 states that, except for those in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers are not the general public, marketing communications for infant formula are prohibited. Additionally, marketing communications must not confuse between infant formula and follow-on formula. Whilst the ad began by making reference to the C&G baby club, the ASA found that the main content of the ad was a discussion around formula milks generally and A2 protein milk specifically. 

The ASA acknowledged that Nutricia used the term ‘formula milk’ as a generic term when referring to the baby milk category, however felt that consumers would likely understand the references to ‘formula’ to mean they were talking about both infant and follow-on formula. Furthermore, the mention of the term ‘infant formula’ towards the ad further reinforced the impression that the ad was referring to infant formula or both infant and follow-on formula. 

The ASA therefore concluded that the ad confused between infant formula and follow-on formula and as such, had the effect of advertising infant formula.

In reference to the second issue, the ASA noted that according to EC Regulation 2016/127 (retained in UK law), health claims must not be made by marketers on infant formula. Additionally, only those health claims authorised on the Great Britain nutrition and health claims register are permitted in marketing communications for foods – which includes follow-on formula. The CAP Code defines health claims as those that state, suggest or imply a relationship between a food, drink or ingredient and health. 

The ASA argued that consumers would understand the claim “A2 protein milk may be easier to digest than regular cow’s milk”, in the context of hearing about A2 protein formula milks, to mean they could have digestive benefits for babies who consumed them, and so this was therefore a health claim. As health claims in relation to infant formula are not permitted, this claim breached the CAP Code.

Furthermore, while it is permitted to make health claims for follow-on formula, there was no authorised health claim for A2 milk protein, and so the claim therefore also breached the Code on that basis.

Take-home

This ruling serves as a stark reminder to infant formula brands: you must not be seen to be advertising infant formula to the general public - even if your intention is the advertise the brand in general.