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Case n. 36/2017

Nutrition claims and information duties

Executive summary of the decision of the Advertising Self-Regulatory Body no. 36/2017

1. Marketing communications challenged by the Control Committee

Desist order issued by the Control Committee against Elah Dufour S.p.A. (“Elah”) concerning the product “Crema Novi Bontà naturale da sempre” (“Product”). According to the Control Committee, the marketing communication highlights the nutrient profiles of the Product, showing it as being healthy.

2. Objections of the Control Committee

(i) Misleading marketing communication (Article 2):

• Consumers induced to consume a large amount of the Product due to:
• nutrition claims based on a 100g quantity (exceeding the reasonable amount of consumption);
• unsaturated fat (contained in the Product) showed as surely healthier than saturated fat;
• no reference to the risks connected with the consumption of sugar and fat;
• Product with high energy density, the over-consumption may be easily induced;

3. Legal arguments of Elah

• all nutrition claims are truthful, correct and compliant with the EU regulations;
• Control Committee provided with scientific studies demonstrating that unsaturated fat are healthier than saturated fat;
• in the marketing communication there is no reference to the consumption / 100g, such unit of measure is only used on the label (pursuant to applicable law);
• since all the claims are truthful, any objections made by the Control Committee would be arbitrarily issued: it seems that the Control Committee asks Elah to communicate to its consumers that the Product is detrimental to their health;
• the applicable law does not require Elah to indicate the recommended portion of Product to be consumed;

4. Procedural steps

• desist order issued by the Control Committee against Elah;
• statement of defense filed by Elah;
• after a provisional suspension, the Control Committee confirmed the desist order;
• Giurì scheduled the hearing and revoked the desist order;
• statement of defense filed by the parties and holding of the relevant hearing;
• decision of the Giurì.

5. Decision of the Giurì

No breach of Article 2 for the following reasons:

• the attention given by the Control Committee to the protection of the consumers is noteworthy, but all the marketing communications challenged are compliant with the IAP Code as well as with the applicable law;
• the marketing communications have appeared on a specialized cooking magazine: the relevant segment of consumers is more careful and well-informed about nutrition information;
• the marketing communications shall not have an educational purpose, unless it is specifically provided by the IAP Code.

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