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DECISION
Meeting 12 June 2012
Complaint 12/167
Complainant: G. Reynolds
Advertisement: Fonterra Brands New Zealand
Complaint: The Fonterra website, www.fonterra.com, included five statements
about the health benefits of dairy as a superior source of calcium and other
important nutrients.
Complainant, G. Reynolds, said:
On its website the advertiser makes the following nutritional claims:
1. "Dairy has the building blocks for life. Whether we are a toddler or over 50 - we all
need it." [1]
2. "Dairy is an essential food group and a vital component of a balanced, nutritious
diet." [2]
3. "Dairy contains a balance of high quality proteins, carbohydrates and fats that
make it an essential part of a balanced diet." [3]
4. "No other source of calcium can be absorbed as well by the body, the other
nutrients in dairy foods help the absorption." [4]
5. "It [milk] is the richest dietary source of calcium ..." [2]
Use of the terms "need", "essential", and "vital" give claims 1-3 a character of
absolute necessity. Needed and essential things are impossible to do without, and
vital ones are essential to life. In each case the terms "need", "essential", and "vital"
refer to dairy. It is dairy itself that is claimed to be necessary, not just the food group
to which it belongs, or the building blocks, proteins, fats, and carbohydrates that it
contains. There is nothing on the pages where these claims appear that would
mitigate their absolute nature, nothing to suggest that they be taken other than at
face value.
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Claims 4-5 are also absolute. Although the term "richest" in claim 5 has a range of
possible meanings, it appears here in the context of the nutrient content of foods, and
so in this case implies that milk is a more highly concentrated source of calcium than
other dietary sources. Claim 4 is about dairy, claim 5 is specifically about milk.
Principle 2, guideline 2(a) of the Code for Advertising Food states that nutritional
claims should be factual, not misleading, and able to be substantiated.
But claims 1-3 are not factual. Ministry of Health nutrition guidelines [5, pp. 94-97; 6,
pp. 145-149] note that all essential nutrients can be obtained from well planned
vegan diets which contain no dairy products, and that such diets are appropriate at
all stages of life including during pregnancy, lactation, infancy, and childhood.
Therefore dairy is not needed at any age, and is not essential or vital to a balanced,
nutritious diet as claimed. A complaint (complaint 11/546, appeal 11/066) about a
similar claim of the necessity of dairy was upheld.
Nor are claims 4-5 factual. Calcium from bok choi, broccoli, and kale is significantly
more absorbable than calcium from dairy milk, cheese, or yoghurt [7, p. 545S].
Moreover, Chinese cabbage flower leaves and Chinese mustard greens have, both
by weight and by volume, more total and absorbable calcium than milk [7, p. 545S],
and so are richer dietary sources. Thus dairy is not the most absorbable source and
milk is not the richest dietary source of calcium as claimed.
References:
[1] Fonterra Co-operative Group. "Dairy and Nutrition". Accessed 3 April 2012.
http://www.fonterra.com/wps/wcm/connect/fonterracom/fonterra.com/Our+Products/D
airy+and+Nutrition/
[2] Fonterra Co-operative Group. "Fonterra Brands Nutrition Policy". Accessed 3 April
2012.
http://www.fonterra.com/wps/wcm/connect/fonterracom/fonterra.com/Our+Products/D
airy+and+Nutrition/Fonterra+Brands+Nutrition+Policy/
[3] Fonterra Co-operative Group. "Life Stages". Accessed 3 April 2012.
http://www.fonterra.com/wps/wcm/connect/fonterracom/fonterra.com/Our+Products/D
airy+and+Nutrition/Life+Stages/
[4] Fonterra Co-operative Group. "The Goodness of Dairy". Accessed 3 April 2012.
http://www.fonterra.com/wps/wcm/connect/fonterracom/fonterra.com/Our+Products/D
airy+and+Nutrition/The+Goodness+of+Dairy/
[5] Ministry of Health (2008). "Food and Nutrition Guidelines for Healthy Infants and
Toddlers (Aged 0-2): A background paper". 4th Edition. Retrieved from
http://www.health.govt.nz/publication/food-and-nutrition-guidelines-healthy-infantsand-toddlers-aged-0-2-background-paper
[6] Ministry of Health (2010). "Food and Nutrition Guidelines for Healthy Children and
Young People (Aged 2-18 Years): A background paper: Draft for Consultation".
Retrieved from http://www.health.govt.nz/publication/food-and-nutrition-guidelineshealthy-children-and-young-people-background-paper
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[7] Weaver, C.M., Proulx, W.R., Heaney, R. (1999). "Choices for achieving adequate
dietary calcium with a vegetarian diet". American Journal of Clinical Nutrition,
70(suppl.), 543S-548S. Retrieved from http://www.ajcn.org/content/70/3/543S.full.pdf
The Chairman ruled that the following provisions were relevant:
Code for Advertising Food
Principle 1 – All food advertisements should be prepared with a due sense
of social responsibility to consumers and to society. However food
advertisements containing nutrient, nutrition or health claims* should observe
a high standard of social responsibility.
*Note: The regulation of nutrition, health and related claims is currently
under review. Please refer to the Food Standard Australia New Zealand
(FSANZ) website www.foodstandards.govt.nz for details. The Food Standard
Code is available on the FSANZ website.
Principle 2 – Advertisements should not by implication, omission, ambiguity
or exaggerated claim mislead or deceive or be likely to mislead or deceive
consumers, abuse the trust of or exploit the lack of knowledge of consumers,
exploit the superstitious or without justifiable play on fear.
Principle 2 Guideline 2(a) – All nutrient, nutritional and health claims should
be factual, not misleading, and able to be substantiated. Claims should
comply with the Food Standards Code.
The Advertiser, Fonterra Co-operative Group Limited, said:
Below we respond to the complaint received by you from G. Reynolds on Tuesday 3
April 2012 and your subsequent letter asking us for a written response by 27 April
2012 (which date was later extended to 21 May 2012)
Fonterra Co-operative Group Limited is responding on its own behalf and does not
represent any other parties
Statements 1 - 3
"Dairy has the building blocks for
life. Whether we are a toddler or
over 50 - we ail need it." Ml
"Dairv is an essential food qroup
and a vital component of a
balanced, nutritious diet." [2]
Complaint
Use of the terms "need", "essential", and 'Vital" give claims 1-3 a character
of absolute necessity. Needed and essential things are impossible to do
without, and vita! ones are essential to life, in each case the terms "need",
"essential", and "vital" refer to dairy. It is dairy itself that is claimed to be
necessary, not just the food group to which it belongs, or the building
blocks, proteins, fats, and carbohydrates that it contains. There is nothing
on the pages where these claims appear that would mitigate their absolute
nature, nothing to suggest that they be taken other than at face value.
4
"Dairy contains a balance of high
quality proteins, carbohydrates
and fats that make it an essential
part of a balanced diet." [3]
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Principle 2, guideline 2(a) of the Code for Advertising Food states that
nutritional claims should be factual, not misleading, and able to be
substantiated.
1
But claims 1-3 are not factual. Ministry of Health nutrition guidelines (5, pp.
94-97; 6, pp. 145-149) note that all essential nutrients can be obtained from
well planned vegan diets which contain no dairy products, and that such
diets are appropriate at all stages of life including during pregnancy,
lactation, infancy, and childhood. Therefore dairy is not needed at any age,
and is not essential or vital to a balanced, nutritious diet as claimed. A
complaint {complaint 11/546, appeal 11/066) about a similar claim of the
necessity of dairy was upheld.
Statement [1] Fonterra Response
Fonterra will change "it" to "them" to clarify that this is a reference to the "building
blocks of life" (which dairy contains)
It is true that dairy contains the building blocks of life - fat, carbohydrate and protein
macronutrients. To take the example of protein, dairy protein is high biological value
(quality) protein which contains the essential and non- essential amino acids (AA).
AA are utilised to make DNA, present in every cell in the human body, Protein is also
used for building and maintaining muscle fibres and by the body to make keratin
used to grow hair, nails and skin. Protein is also used to make body enzymes,
essential chemical reactants in everyday metabolism- Deficiency of protein causes
illness, such as protein-energy malnutrition and can cause deformity during growth
periods of life.
This is weil established science, available to the average consumer in local library
standard text books, and also scientifically substantiated in peer reviewed journal and
research publications. We also refer the ASA to the following references: Stejins JM.
Dairy Products and health: Focus on their constituents or on the matrix. Inter Diary
Journal 2008;18:425-435; Jarvis JK„ McBean LD. 2000, Pp 4-5; Essentials in Human
Nutrition. 2nd edition. Mann J., Truswell SA. 2002. Pp 394-395; Handbook of Dairy
Foods and Nutrition. 2nd edition. Miller GD., Jarvis JK., McBean LD. 2000. Pp 14-15;
Understanding Nutrition. 7th edition. Whitney EN., Rolfes SR.. 1996. Pp 214-215;
Food and Nutrition Guidelines for Healthy Adult New Zealanders (2003).
Put simply, Fonterra acknowledges that other food groups contain the building blocks
of life. But this does not invalidate Fonterra's claim with regard to dairy which also
contains the building blocks of life.
Statement [2] Fonterra Response
In this instance, Fonterra has changed this statement to read "Dairy is an important
food group" rather than an essential food group. However, it does not agree with the
complainant's argument.
With regard to the word ''essential", the complainant has chosen to highlight the most
extreme meaning of the word "essential" (i.e. "vitally important; absolutely
necessary"). "Essential"'" also means "basic; fundamental" (see Collins English
Dictionary, 3rd Ed., Harper Collins Publishers, 1992).
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Similarly, with regard to the word "vital", the complainant has chosen to highlight only
one meaning of the word "vital" (i.e. "essential to maintain life"). Vital also means "of
great importance" (see Collins English Dictionary, 3M Ed., Harper Collins Publishers,
1992). It is this context in which the word is used and, we think, would be understood
by the reasonable or average consumer.
While Fonterra acknowledges current dietetic principles that dairy is not included in
all dietary practices, for example, lactose free diets, dairy allergy diets or vegan
vegetarian (non-animal food, non-ovo) diets, Fonterra remains of the view that it is a
fact that dairy is a basic or fundamental food group and that dairy (or, more
specifically the nutrients within dairy) is of great importance as a core food group
(which does not mean that other food groups cannot be described in the same way).
This view is supported by the New Zealand Ministry of Health which recognises the
role that milk and milk products have in a healthy, balanced diet in the nutritional
guidelines set out in appendix 1 to this letter. This view is also supported by the fact
that if dairy is not included in a diet there does need to be care taken to ensure
alternative sources of nutrients are available that would otherwise be obtained from
dairy. For example, vitamin B12 which is generally found in animal foods, must be
actively replaced in dairy free diets, particularly when Vitamin B12 requirements are
increased, such as during pregnancy. Refer: New Zealand Food and Nutrition
Guidelines ",.(those) who avoid milk and milk products need to maintain adequate
intakes by eating non-dairy sources of calcium, such as calcium-fortified soy milk,
canned fish (with bones), nuts, green leafy vegetables, dried fruit, tofu, and
wholegrain breads and cereals. Food sources of calcium are preferable to
supplements. However, a calcium supplement may be needed if calcium intake from
food is inadequate."
For these reasons, Fonterra does not believe that statement [2] breaches the Code.
It is true and not an exaggeration to say that dairy is a basic or fundamental food
group and that dairy is of great importance as a core food group i.e. that it is
"essential" and / or "vital". Fonterra has not said that other food groups are not
essential or vital.
Statement [3]: Fonterra .Response
In this instance, Fonterra will change this statement to read "Dairy contains a balance
of high quality proteins, carbohydrates and fats that make it an important part of a
balanced diet."
However, for the reasons given above in relation to statement (2] it does not believe
that statement [3] breaches the Code.
It is true that dairy contains a balance of high quality proteins, carbohydrates and
fats. There are multiple references that can be sourced to support this basic fact
including: Ministry of Health: Food and Nutrition Guidelines for Healthy Adult New
Zealanders (2003): Ministry of Health: Food and Nutrition Guidelines for Healthy
Adolescents (1998); Ministry of Health: Food and Nutrition Guidelines For Healthy
Children and Young People (Draft MoH Guidelines); University of Otago and Ministry
of Health, 2011. A focus on nutrition: Key findings of the 2008/09 New Zealand Adult
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Nutrition Survey. Wellington. Ministry of Health; Huth PJ et al. Role of Dairy Foods in
the Dietary Guidelines Nutr Today. 2008;43(6):226-234
Fonterra's view is that this means that dairy is a basic or fundamental part of a
balanced diet. It is not the only part of a balanced diet and a balanced diet can be
achieved without dairy - but this does not make it untrue to say that dairy is a basic or
fundamental part of a balanced diet.
Statements 4 and 5
"No other source of calcium can be
absorbed as welt by the body, the
other nutrients in dairy foods help
the absorption" [4]
"It [milk] is the richest dietary
source of calcium ..." [5]
Complaint
Principle 2, guideline 2(a) of the Code for Advertising Food states that | nutritional
claims should be factual, not misleading, and able to be i substantiated.
Nor are claims 4-5 factual. Calcium from bok choi, broccoli, and kale is !
significantly more absorbable than calcium from dairy milk, cheese, or yoghurt [7,
p. 545S). Moreover, Chinese cabbage flower leaves and Chinese mustard greens
have, both by weight and by volume, more total and ] absorbable calcium than
milk [7, p. 545SJ, and so are richer dietary sources. Thus dairy is not the most
absorbable source and milk is not the richest I dietary source of calcium as
claimed.
Statement [4]: Fonterra Response
This is technically correct, the casein-whey protein complex plus phosphates in milk
and milk products assist in calcium absorption.
Refer: Essentials in Human Nutrition. 2nd edition. Mann J., Truswell SA. 2002. pp
394-395 "Milk is an excellent source of readily absorbable calcium and phosphorous
and milk and milk products provide over 75% of the calcium In the human diet in
Western countries... Lactose enhances the absorption of calcium and phosphorous
from the intestine"
Statement [5]: Fonterra Response
To be absolutely technically correct, Fonterra will amend this statement to read: "milk
is the richest natural food source of bio-avaliable calcium”
There are other dietary sources of calcium (the example often cited is green leafy
vegetables such as spinach) however, due to naturally present 'binding' factors in the
vegetable such as oxalate, that bind the calcium mineral ions, the calcium is not as
bio-available for absorption completely by the human body. Calcium supplements or
fortified foods can also contain higher absolute levels of calcium than dairy foods, but
these would not be 'natural food sources'.
Refer, Gueguen L et al. The Bioavaiiability of Dietary Calcium. J Am Col Nutt. 2000;
19(2): 199S-136S; Ministry of Health: Food and Nutrition Guidelines for Healthy
Adult New Zealanders (2003)
We look forward to receiving your response. If you require further information in
relation to this complaint please contact me.
7
Guideline
Ministry of Health: Food and Nutrition Guidelines For
Healthy Children and Young People (Draft MoH
Guidelines)
Ministry of Health: Food and Nutrition Guidelines for
Healthy Adolescents (1998)
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Guidance
Milk and milk products are particularly important for
children and young people to ensure optimal bone
health. Reduced or low-fat milk and milk products are
the best choices because these foods include less
saturated fat, and often more protein and calcium than
high-fat alternatives.
As part of a varied diet, it is recommended that:

preschoolers and children aged 2 to 12 years
consume at least two servings of milk (includes
calcium fortified milk alternatives) and milk products
(cheese and yoghurt) each day

young people aged 13 to 18 years consume
at least three servings of milk (includes calcium
fortified milk alternatives) and milk products {cheese
and yoghurt) each day.
Life as a teenager can be fast, furious and fun - and so
can your food. Include from the four groups to get the
nutrients you need to stay healthy, active and alert...
Milks and milk products
 Includes milk, cheese, yoghurt and ice cream.
 Valuable sources of calcium and protein.
 Choose low fat milk for extra calcium.
 You need high-calcium foods to build strong
bones during teenage years.
 Try milk, cheese and yoghurt as snacks.
 Keep active - regular exercise keeps Bones
strong in later life.
Choose at least three servings each day, preferably
low fat.
Absence of milk products may influence peak bone
mass acquisition in adolescents because of inadequate
intakes of dietary vitamin D, calcium and phosphorus
(Parsons et al 1997).
Ministry of Health: Food and Nutrition Guidelines for
Healthy Adolescents (1998)
Ministry of Health: Food and Nutrition Guidelines for
Healthy Pregnant and Breastfeeding Women (2008)
Milk is a valuable component of the diet, as an
important source of calcium, protein and essential
nutrients.
Milk and milk products: Eat at least 2 servings per
day (choose low fat or reduced fat options).
Achieving the RDI for calcium without some liquid
milk and milk products is difficult.
Pregnant and breastfeeding women should eat at
least three servings of calcium-rich foods such as
milk, cheese and yoghurt every day to ensure an
adequate intake of calcium. This is especially
important during breastfeeding.
Deliberation
The Complaints Board carefully read all correspondence in relation to the complaint,
and viewed a copy of the advertisement. It noted that, in the Complainant’s view, the
claims made in the advertisement were misleading and unable to be substantiated.
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The Chairman directed the Complaints Board to consider each of the statements
that Complainant took issue with, and the changes the Advertiser had made to the
website to address the Complainant’s issues.
The Complaints Board first considered statement 1 which read “[d]airy has the
building blocks for life. We all need them.” The Complaints Board was of the view
that changing the ‘it’ to ‘them’ made enough of a difference to clarify the reference to
the ‘building blocks of life’ rather than to dairy specifically. The Complaints Board
considered that the changes the Advertiser made in this statement were sufficient to
maintain the high standard of social responsibility required by Principle 1. The
Complaints Board also considered that the statement was no longer likely to mislead
consumers and it did not reach the threshold to breach Principle 2 or Guideline 2(a).
The Complaints Board held the issue of statement 1 to be settled.
The Complaints Board noted the second statement which said “Dairy is an essential
food group and a vital component of a balanced, nutritious diet.” In considering the
changes made to the second statement, the Complaints Board did not consider the
changes sufficient to bring the advertisement under the threshold for Principles 1
and 2 and Guideline 2(a). The Complaints Board was of the view that although
changing the word ‘essential’ to ‘important’ met the requirements of the Code for
Advertising Food, the continued use of the word ‘vital’ was still potentially misleading
to consumers. As such, they upheld the complaint about this statement on the
grounds that use of the word ‘vital’ was not able to be fully substantiated and as
such could be misleading to the consumer.
Turning to the third statement which said “Dairy contains a balance of high quality
proteins, carbohydrates and fats that make it an essential part of a balanced diet”
the Complaints Board considered whether replacing the word ‘essential’ to
‘important’ was sufficient to alleviate a possible breach of the Code for Advertising
Food . The Complaints Board was of the view that using ‘important’ conveyed the
intended message to the consumer, and could be readily substantiated. As with the
first statement, the Complaints Board held that the statement was no longer likely to
mislead consumers and it did not reach the threshold for a breach of Principle 2 or
Guideline 2(a). The Complaints Board held the issue of statement 3 to be settled.
The Complaints Board then turned to statement four which said “No other source of
calcium can be absorbed as well by the body, the other nutrients in dairy foods help
the absorption.” The Complaints Board noted the response of the Advertiser to the
issues raised about this statement, and the evidence supplied by the Complaint and
the Advertiser. In the Complaints Board view, the absolute statement that “No other
source of calcium can be absorbed as well by the body…” had not been adequately
substantiated by the Advertiser, and therefore the Complaints Board agreed that it
was likely to mislead the consumer. Consequently, the Complaints Board upheld the
complaint about this statement, holding that the threshold for misleading content had
been attained, which led to a breach of Principle 2.
Finally, the Complaints Board considered the fifth statement about which the
Complainant raised an issue. This said “It [milk] is the richest dietary source of
calcium ...”. The Complaints Board noted the Advertiser’s response where it said “To
be absolutely technically correct, Fonterra will amend this statement to read: "milk is
the richest natural food source of bio-available calcium”
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The Complaints Board ruled the amended statement was not likely to mislead
consumers and did not reach the threshold for a breach of Principle 2 or Guideline
2(a). The Complaints Board held the issue of statement 5 to also be settled.
In summary, the Complaints Board ruled the Complaint was Upheld (in part)
regarding statements 2 and 4, and Settled (in part) regarding statements 1, 3 and 5.
Decision: Complaint Upheld (in part), Settled (in part)