Download decision - New Zealand Advertising Standards Authority

08/665
AWAP 08/022
DECISION
Special Meeting 9 February 2009
Convened Pursuant to Rule 3 of the
Constitution of the Advertising Standards Complaints Board
Complaint 08/665
AWAP 08/022
Complainant: Frucor Beverages (NZ) Limited
Advertisement: Zeagold Foods
Complaint: The neck tag for SeJuice orange juice was placed on bottles of juice in
the supermarket. On one side it said:
“Did it hurt?
When you fell
out of heaven.”
get fresh SeJuice.
The other side said:
Also available in these
irresistible flavours
orange envy
tropical passion
berry affair
feijoa fling
get fresh SeJuice.
2
08/665
AWAP 08/022
Other necktags followed the same format, but included different ‘pick up lines’.
The Complainant, Frucor Beverages (NZ) Limited, said:
“We would like to make a formal complaint about an advertisement in the form of a
neck tag that is being attached to the Pinto Limited product SeJuice Orange Envy.
The Advertisement
The neck tag is a bright orange rectangular piece of card that containing the text
"get fresh" and the brand name "SeJuice". A copy of the Advertisement is
attached as Appendix 1.
[We note that the Advertising Standards Authority has previously deemed that
claims contained in "neck tags" constitute advertisements over which the Advertising
Standards Authority has jurisdiction (Decision 106/09).]
Background
SeJuice Orange Envy is an orange juice product comprised of predominantly
reconstituted juice sold in supermarkets in 1 and 2 litre plastic bottles with handles.
It has recently come to our attention that bottles of SeJuice Orange Envy have been
sold bearing neck tags with the words "get fresh" prominently displayed next to the
SeJuice brand.
It is shelved in the chiller section in close proximity to Arano, Simply Squeezed,
Signature Range and Charlie's branded orange juice products. Those products all
contain squeezed orange juice as the main ingredient. The SeJuice Orange Envy
packaging is similar in appearance to products in the Arano, Simply Squeezed and
Signature Range orange juice ranges.
The SeJuice Orange Envy labelling lists the following ingredients (in order of ingoing
weight): "reconstituted orange juice, orange juice, orange pulp, sugar, flavour,
preservative (202)". The fact that reconstituted juice is listed first confirms that the
SeJuice product contains more reconstituted juice than fresh juice. A number of
other ingredients, in particular flavour and preservative (202), are not ingredients
that a consumer would expect to find in "fresh" orange juice.
Other juices which are comprised of predominantly reconstituted juice, and which
would be understood by consumers not to be "fresh" juice, are marketed:
a)
In the general supermarket aisles (ie outside chiller space); and
b)
In 1 Litre tetrapak cartons or 3 Litre clear plastic bottles.
Juices marketed in the chiller section and which bear the word "fresh" contain only
freshly squeezed juice.
Relevant provisions of the Advertising Standards Codes
3
08/665
AWAP 08/022
We consider that the Advertisement is in breach of the following Principles and
Guidelines under the Code for Advertising Food and the Code of Ethics:
Code for Advertising of Food
Principle 1 - Advertisements should comply with the laws of New Zealand and
appropriate industry Code of Ethics.
Principle 4 - 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 reason play on fear.
Guideline 4(d) - Claims in an advertisement should not be inconsistent with
information on the label or packaging of the food.
Code of Ethics
Basic Principle 3 - No advertisement should be misleading or deceptive or likely to
mislead or deceive the consumer.
The complaint
The Advertisement is false and misleading in that it implies that the SeJuice Orange
Envy product is "fresh" orange juice, when it is predominantly reconstituted juice and
contains preservatives.
The term "fresh" is generally understood by consumers (in relation to food) as
"retaining the original properties unimpaired: not deteriorated; not canned or frozen;
not preserved by pickling, salting, drying, etc." The process of reconstitution means
that the juice used in SeJuice is not "fresh" as that term is commonly understood by
consumers.
Consumers generally understand the term "fresh" when applied to juice to mean
that the product is freshly squeezed juice which has not undergone any artificial
alteration or process, rather than juice that is made up of both fresh and
reconstituted juice. The term "fresh" as applied to SeJuice is accordingly misleading,
particularly as the ingredients list discloses that the product contains more
reconstituted juice than fresh juice (and also contains sugar, flavour and
preservative).
In November 2006 the Australian Competition and Consumer Commission (the
Australian equivalent of the New Zealand Commerce Commission") published a
"Food Descriptors Guideline to the Trade Practices Act" for use by the food and
beverage industry to ensure compliance with the Australian Trade Practices Act. (As
you will be aware, the relevant provisions of the Trade Practices Act are identical to
the prohibition against misleading or deceptive advertising contained in Basic
Principle 3 of the Advertising Code of Ethics.) That guideline contains the following
statement:
4
08/665
AWAP 08/022
"The term "fresh" may be used as part of a brand name. When used as a
brand name, the term [fresh] should not be used to give an impression that
the product is 'fresh' when it is not."
As the relevant provisions of the Trade Practices Act 1974 are in all material
respects the same as the relevant provisions of the Advertising Standards Codes
(and the New Zealand Fair Trading Act) the Australian guidelines and case law are
instructive in the New Zealand context.
The New Zealand and Australian Courts and the ACCC have consistently stated
that claims that a juice is fresh are misleading and deceptive when they are used to
denote a product that contains a significant proportion of reconstituted juice, or juice
that can not be accurately described as fresh. The following examples are illustrative
of this:
(a) The High Court of New Zealand in the Commerce Commission v The Fresh
Juice Company (1997) 8 TCLR 131 found that claims (which included
representations in advertising) that an orange juice was "fresh" when in fact
the juice was pasteurized, and contained preservatives were misleading to
the public and a breach of s9 of the Fair Trading Act 1986. The Court noted
that it was no answer to rely on the compliance with food regulations and the
inconspicuous notice on the containers of the juice. (As you will be aware, s
9 of the Fair Trading Act is in all material respects similar to the prohibition
against misleading or deceptive advertising contained in Basic Principle 3 of
the Advertising Code of Ethics.)
(b) The Federal Court in Australia has found that the label claims 'Florida Fresh'
and Fresh Premium' orange juice were misleading and deceptive in breach
of the Trade Practices Act in that they implied the goods were 'fresh' when
the goods contained reconstituted orange juice and preservatives.
(c) In 2006 the Australian entity Just Squeezed Group agreed to provide a court
enforceable undertaking to the ACCC under s87B of the Trade Practices Act
1974 Act for certain of its products. Just Squeezed Group agreed to stop
manufacturing fruit juice under the brand name 'Just Squeezed Fruit Juice'
after the ACCC raised concerns that the labelling misrepresented the
contents of its products. Of the juice products made by the Just Squeezed
Group, only one contained fresh juice, ranging from 25 per cent and 75 per
cent, depending on seasonal factors. The rest of the range contained
reconstituted juice. Although the ingredients on the product labels listed
reconstituted juice, the prominence of the word 'Just Squeezed' on the
labels, together with images of fruit and words such as 'Orange Juice' and
'Apple Juice', created an impression that each product was made directly
from the fruit shown on the labels and did not contain reconstituted juice. In
the context of the Just Squeezed case, the chairman of the ACCC stated:
"Many consumers of fruit juice have a preference for products that
contain only fresh juice and are prepared to pay more for them.
Therefore, businesses must be careful about how they label their
products to avoid any misrepresentations about their contents."
5
08/665
AWAP 08/022
The NZ Juice and Beverage Association (of which Pinto Limited is a member) has
produced a Voluntary Code of Practice ("Fruit Juice Quality Descriptor 1
Representations Guidelines") that is aimed at ensuring accurate and truthful
labelling on juice products. A stated aim of the Code of Practice is to signify
compliance with the relevant Food Regulations and Fair Trading requirements. The
SeJuice packaging bears a logo that signals compliance with the NZ Juice and
Beverage Association Code. The use of the words "get fresh" as applied to juice
containing reconstituted juice, sugar and preservatives does not comply with clause
3.1 of the NZ Juice and Beverage Association Voluntary Code of Practice, which
provides:
"3.1
Fresh
Fruit juice can only be referred to as `fresh' if it meets the following criteria
and is in line with the Food Standards Codes on 'Mechanical Extraction':
• Must not contain, or have ever contained food additives such as flavouring
or colouring agents, preservatives, artificial or synthetic ingredients or
added vitamins or minerals.
• Must not contain any juice which has undergone a concentration process.
• Must not have been subjected to a high temperature treatment.
• Must not be stored frozen or contain frozen juice.
• Should have a shortened shelf-life as compared to similar "non-fresh"
products in the market-place and must not be stored for more than 48
hours from the time of extraction prior to finished product packaging.
• No flavours can be added.
• No vitamin C can be added."
Conclusion
In conclusion, the Advertisement breaches Advertising Standards Codes in that it
creates (or is likely to create) a misleading and deceptive impression about the
composition of SeJuice Orange Envy. The words "get fresh" imply that the SeJuice
product is fresh juice when it is in fact made of predominantly reconstituted juice and
contains preservatives, which is not considered by consumers to be "fresh". In
addition, the use of the term "fresh" breaches the New Zealand Juice and Beverage
Association Code, and accordingly breaches Principle One of the Code for
Advertising Food.”
The Chairman ruled that the following provisions were relevant:
Code of Ethics
Rule 2 - Truthful Presentation - Advertisements should not contain any
statement or visual presentation or create an overall impression which directly
or by implication, omission, ambiguity or exaggerated claim is misleading or
deceptive, is likely to deceive or mislead the consumer, makes false and
misleading representation, abuses the trust of the consumer or exploits
his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as
such, is not considered to be misleading).
Code for Advertising of Food
6
08/665
AWAP 08/022
Principle 1 - Advertisements should comply with the laws of New
Zealand and appropriate industry Code of Ethics.
Principle 4 - 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
reason play on fear.
Guideline 4(c) Food advertisements containing obvious hyperbole, identifiable
as such are not considered misleading.
Guideline 4(d) Claims in an advertisement should not be inconsistent with
information on the label or packaging of the food.
Procedure: The Chairman ruled to deal with the matter by “adjudication with
attendance of the parties” pursuant to Rule 3 of the Complaints Procedures of the
Advertising Standards Complaints Board. This system was designed to resolve
disputed between competitors. Accordingly, the Chairman appointed a Panel.
The Panel: Ms J. Robson, Chairman of the Advertising Standards Complaints
Board. Co-panelists, Mr A. Haronga (Alternate), public member of the Advertising
Standards Complaints Appeal Board and Mr R. Moffat, industry member of the
Advertising Standards Complaints Appeal Board.
The Complainant, Frucor Beverages (NZ) Limited, was represented by Mr C.
Bergstrom, Chief Executive Officer, and Mr S. Wright, Business Unit Manager –
Arano.
The Advertiser, Zeagold Foods, chose not to attend.
The Advertiser, Zeagold Foods, said:
“We acknowledge the complaint from Mr. Bergstrom, and support his efforts to
uphold the standards of our industry.
Introduction
Much of what is in the body of the complaint is technically accurate and does not
require challenging.
The focus of the complaint is on the meaning of the word "fresh" alone. But "fresh"
is not the only word on the neck tag. It is the overall impression of the
advertisement that is relevant.
The word fresh is part of the phrase "get fresh". To "get fresh" is to be flirty or to be
overly forward or familiar with someone. This part of the brand obviously plays on
7
08/665
AWAP 08/022
from the other part SeJuice, which sounds the same as seduce. The names of the
flavours and cheeky phrases used emphasise this theme.
Consumers will understand and appreciate the fun and flirtatious theme of the
SeJuice branding. Consumers will not be misled or deceived. This is particularly so
when you consider the other brands in the fruit drinks market, such as the
complainant's FRESH UP and JUST JUICE names, and the drinks that our
products sit next to in stores.
The complainant's assertion that there is a distinction between chilled and other
juices is without basis. It is simply an attempt to sideline the significance of the
complainant's own `fresh' branding.
Seen in context the use of "get fresh" is simply fanciful hyperbole. This is
something the ASA codes, the New Zealand Juice and Beverage Associate
guidelines and the courts all recognise as not being misleading.
In any event the neck tag labels, in the form complained of, are no longer being
applied.
I now comment in more detail.
The ASA codes relevant to the complaint
The ASA letter of 12 January 2009 identifies the codes relevant to the complaint.
Code of Ethics-Rule 2
This rule requires truthful presentations. Deceptive or misleading advertisements are
not acceptable.
Importantly "obvious hyperbole, identifiable as such, is not considered to be
misleading".
Code for advertising of food-Principle 4 including guidelines
Principle 4 is similar to the above Rule 2. Deceptive or misleading advertisements
are not acceptable.
Guideline 4(d) says advertisements should not be inconsistent with information on
the label or packaging of the food.
Also relevant is guideline 4(c). That guideline says:
"Food advertisements containing obvious hyperbole, identifiable as such, are not
considered misleading".
Code for advertising of food-Principle 1
Advertisements should comply with New Zealand law and industry codes of ethics.
We take this to mean the New Zealand Juice and Beverage Association guidelines.
For the reasons given in this letter the ASA codes or other codes have not been
breached.
Points of agreement
8
08/665
AWAP 08/022
I can confirm certain salient points.
1.
The ingredient list, as provided by the complainant, is accurate, ie the
product is a blend of reconstituted and NFC juice.
2.
The product is shelved in the chilled juice section of the supermarket (if it
were not it would have a very short shelf life).
3.
SeJuice Orange Envy is not, by the definitions given in section 3.1 of the
NZJBA Juice Descriptor Guidelines, "fresh". We are not describing it as
such, nor are we claiming that it does meet this definition.
4.
The product has had a neck tag, which was predominantly a "saucy" chat up
line followed by the phrase "get fresh" and the name SeJuice. Of these
three elements, the phrase "get fresh" is actually the least prominent.
Inaccuracies in the complaint
There are several points that are not accurate or are unclear in the complaint and
these should be noted thus:
1. There is no basis for implying, as the complainant does, that because a juice
is in the chiller it is fresh. A chiller preserves the shelf life of the product,
whether it is cheese, milk, meat, fish or juice. Our juices and smoothies are
in the chiller to extend their life. Sometimes a product may be in the chiller
simply to make it cold.
2. Although implied by the complainant, the other juices typically in the chiller at
a supermarket do not meet the criteria for fresh set out in section 3.1 of the
NZJBA Juice Descriptor Guidelines. Charlie's orange juice is well known to
have been pasteurised; Simply Squeezed, Signature Range and Arano all
contain reconstituted juice; McCoy Pure Squeezed Orange Juice has a shelf
life of at least 8 months therefore none of these are "fresh". To imply that the
SeJuice Orange Envy is making a claim to being fresh by association is
clearly not supported by the facts.
3. It is common to find chilled cans of FRESH UP juice or packs of JUST JUICE
in the chiller of a supermarket, dairy or service station. There is no consumer
expectation that chilled juice means fresh juice. Attached are photographs
from a Wellington supermarket showing the complainant's FRESH UP and
JUST JUICE in a chiller next to one and two litre juice products.
4. Not all orange products that are in close proximity to SeJuice Orange Envy in
supermarket chillers contain squeezed orange as the main ingredient, eg
Supreme Orange Nectar from Simply Squeezed which contains only 65%
orange juice in total.
The overall impression of the neck tag label
The phrase "get fresh" is a common phrase which is used to describe a person who
is being overly familiar with another. This is totally consistent with the branding
strategy of using the word SeJuice (a play on seduce), the products names "Apple
Temptation", "Lime Lust", "Berry Affair", "Tropical Passion", and the plethora of
dodgy chat up lines.
9
08/665
AWAP 08/022
For example:
"Your eyes are blue, like the ocean. And baby, I'm lost at sea"
"Are your parents bakers? Cos you sure are a cutie pie!"
"If I said you had a beautiful body would you hold it against me?"
"Are you a parking ticket? Cos you've got fine written all over you"
"Is your dad a thief? Because he stole the stars and put them in your eyes"
"Hi, my name is Fred Flintstone and I can make your bed rock"
"Did it hurt? When you fell out of heaven"
"Are we near the airport or is that just my heart taking off?"
Attached are examples of how these phrases appear. Consumers are savvy enough
to get the message and not be misled. Particularly given the other branding in the
market and the nature of the other products.
Other branding in the market
The complainant's own FRESH UP brand is a prime example of how the word `fresh'
is used by other traders. The FRESH UP product does not meet the NZJBA
guidelines for fresh.
Other examples are JUST JUICE, which is not just juice and SIMPLY SQUEEZED,
which is more than just squeezed juice.
If consumers can live with such branding then there should be no difficulty with the
fun of our advertisements.
Consumers will not look at the word fresh and read it in isolation from the rest of our
branding.
As an aside, notwithstanding the regulations and guidelines, consumers'
understanding of fresh, is generally different from that of the technical people
involved in the product. I cite "fresh" milk, which as we all know has undergone a
process of skimming, pasteurisation, homogenisation, and standardisation.
Technically, fresh milk is as it comes straight from a cow, but to most people, milk is
fresh if it hasn't started to sour in the fridge.
No consumers have complained
No consumers have complained about our branding. The complaint comes from a
competitor not an ordinary member of the public.
The New Zealand Juice and Beverage Associate Guidelines
The complainant only refers to section 3.1 of the NZJBA Juice Descriptor
Guidelines. But the other guidelines make it clear that any use of 'fresh' must be
seen in context. It is a matter of overall impression.
10
08/665
AWAP 08/022
Section 3.0 and 3.2 of the NZJBA Juice Descriptor Guidelines refers to "fresh" in the
following passages:
Note that, even if the following words cannot be used as descriptors, it may
still be possible to use them on the label, provided they do not mislead the
consumer into believing that the word is being used to represent the quality
of the product, e.g. 'naturally' good for you. It is important to remember that
it is not the use of the individual words that may mislead the consumer but
the overall impression created by label and associated advertising.
"Fresh Style" descriptors could be acceptable providing the product had a
flavour associated with fresh juice. However, the whole descriptor must be
printed clearly and the perception that the product could be "fresh" must be
avoided (Reference: Fair trading Guidelines from the Commerce
Commission).
In this respect we feel that we are not contravening the NZJBA guidelines. The
overall impression created by the labelling, the branding and the associated
marketing is aimed at urging the consumers to exercise their romantic inclinations.
The New Zealand Juice and Beverage Association have raised the use of fresh to
our attention. We have explained the fun and cheeky nature of the use of 'get fresh'.
Trade mark application for SeJuice get fresh
Further, a trademark application has been accepted by the Intellectual Property
Office of New Zealand for the phrase "get fresh" in association with SeJuice. We
attach the details of this application.
The Commissioner of Trade Marks has examined our application, including for
deceptiveness, and has accepted our application. However, the complainant has
now objected to the trade mark. I understand it will take many months before we can
put our case at a hearing.
Other cases and the position in Australia
The complainant refers to the Australian Competition & Consumer Commission
(ACCC) and other cases.
The ACCC like the New Zealand Commerce Commission and the NZJBA do not say
that `fresh' can only be used on juice that meets the technical description of fruit.
The examples referred to by the complainant all seem to be about situations where
the word fresh could only be taken as being 'fresh' in the technical sense.
The ACCC's own guidelines, the NZJBA guidelines, the Commerce Commission
guidelines and importantly the ASA Guidelines make it clear it is a matter of overall
impression.
The complainant cites several cases where the term "fresh" or "squeezed" has been
disallowed but omits the fact that in this country, the brand "Simply Squeezed"
persist, and Frucor's own brands FRESH UP and JUST JUICE (used on products
11
08/665
AWAP 08/022
that are not just juice) contain potentially misleading descriptors. We believe that our
own trademark is no less valid than those mentioned above.
Conclusion
In conclusion,

"fresh" has not been used as a descriptor

the direction of the branding and marketing creates an overall impression of a
flirtatious product, setting a framework which appropriately includes "get
fresh"

the presentation in the chilled section of the supermarket is amongst juices
which are also non-fresh juices

the fact that the juice contains reconstituted juice and preservatives does not
in itself create a misleading impression as the other products mentioned
above may not be referred to as "fresh" either

the complainant has educated consumers to understand that the word 'fresh'
can be used in branding, through the use of FRESH UP, without technical
adherence to the industry guidelines.”
Oral Submissions
Mr Bergstrom and Mr Wright, representing the Complainant, made oral submissions
in line with their written submissions, and in response to the submissions forwarded
in writing by the Advertiser, and responded to questions posed by members of the
panel. The Chairman was satisfied that there was no new evidence introduced in the
oral submissions.
Deliberation
The Panel confirmed that it had read and taken into account all the written and oral
submissions made in relation to the complaint. It also identified the advertisement
which was the subject of the complaint, which was an orange neck tag with the text
“Did it hurt? When you fell out of heaven” at the top of the tag and the words “get
fresh SeJuice” at the bottom. On the rear of the tag various other juice flavours were
listed with the text “get fresh SeJuice” appearing again at the bottom of the
advertisement.
It confirmed that the advertisement was to be considered against Rule 2 of the Code
of Ethics and Principle 4 of the Code for Advertising of Food, both of which
prohibited misleading advertising. The advertisement was also to be considered
against Principle 4 Guideline 4(c) of the Code for Advertising of Food, which made
provision for obvious hyperbole in advertising, and the panel noted that this
provision was also made in Rule 2 of the Code of Ethics. Also relevant to the
complaint’s consideration was 4 Guideline 4(d) of the Code for Advertising of Food
12
08/665
AWAP 08/022
which required claims in an advertisement to be consistent with information on the
label or packaging of the food.
The Panel noted that the complaint had also been made under Principle 1 of the
Code for Advertising of Food, which required food advertisements to comply with the
laws of New Zealand and appropriate industry Codes of Ethics. The Panel
confirmed that in this case the appropriate industry Code was the New Zealand
Juice and Beverage Association (NZJBA) Juice Descriptor Guidelines. However, as
the Panel was advised that there was an ongoing discussion about the
advertisement’s compliance with the guidelines with the appropriate industry body,
in this instance it was of the view that it was not in a position to properly consider the
complaint under Principle 1 and accordingly elected to not include this principle in its
consideration of the complaint before it.
In consideration of the substance of the complaint before it, the Panel noted that the
Complainant objected to the use of the term ‘fresh’ in the neck tag advertisement for
the SeJuice product. It noted the Complainant’s view that the use of the word ‘fresh’
in this advertisement was misleading, as it implied the product contained only fresh
orange juice, when it did not.
Turning to the advertisement, the Panel noted that it contained a phrase that could
be considered a ‘pick-up’ line, in this case “Did it hurt? When you fell out of heaven”.
It noted the Advertiser’s advice that there was a variety of other pick-up lines on the
other advertisements, and that these were part of their “branding strategy of using
the word SeJuice (a play on seduce)”. The Panel noted that this theme was
continued with the names of the drink flavours, such as ‘Lime Lust’ and ‘Berry Affair’.
The Panel observed that one of the dictionary meanings of the word fresh, listed by
the New Zealand Oxford English Dictionary, was “cheeky, presumptuous” and
further noted the contention of the Advertiser that this was the intended meaning of
the word ‘fresh’ in the advertisement.
The Panel acknowledged the Complainant’s contention that another meaning of the
word fresh in this advertisement was that of a product descriptor, that is, fresh juice.
The Panel noted Paragraph 3.1 of the New Zealand Juice and Beverage
Association (NZJBA) Juice Descriptor Guidelines, where it said, in part, that a
product referred to as fresh “Must not contain, or have ever contained food additives
such as flavouring or colouring agents, preservatives, artificial or synthetic
ingredients or added vitamins or minerals”.
The Panel observed that the ingredients of the SeJuice product contained, among
other ingredients, flavour and preservative. Having made this observation the Panel
was of the view that the SeJuice product could not be regarded as a fresh juice
product. The Panel noted that the Advertiser did not contest this, and that they had
said “We are not describing [the product] as [fresh], nor are we claiming that it does
meet this definition”.
Having confirmed that the SeJuice product was not a fresh juice product, the Panel
then considered whether the neck tag advertisement gave the impression that it
was, as alleged by the Complainant.
13
08/665
AWAP 08/022
The Panel noted that the statement ‘get fresh’ appeared on a neck tag which was
placed around the lid of the juice bottle. The panel was of the view that a statement
on a neck tag was likely to be viewed by consumers as a description of the product,
rather than as purely an abstract marketing campaign, because of its close proximity
to the actual product being sold.
Turning to the phrase “get fresh SeJuice”, the Panel was of the view that this text
could, in the absence of any grammatical pause between the words ‘fresh’ and
‘SeJuice’, be read as a complete directive sentence. The Panel said that consumers
reading this sentence would understand the word ‘fresh’ to be a descriptor of the
product they were being directed to buy.
The Panel was of the view that the statement, as it appeared on a neck tag, and the
phrase itself, would be likely to suggest to the consumer that one of the meanings of
the word ‘fresh’ in the advertisement, was as a descriptor of the product. The Panel
was of the view that this perception was further enhanced by the way that the
SeJuice product was packaged and presented, which was in a way similar to other
fresh juice products.
Having made these observations, the Panel was of the view that the phrase ‘get
fresh’ was likely to be interpreted by consumers as both a descriptor of the product,
as well as reference to someone being “cheeky, presumptuous”, as per the SeJuice
branding strategy. As the product could not be considered purely fresh orange juice,
the panel said the advertisement was misleading.
Accordingly the Panel said that the advertisement was in breach of Rule 2 of the
Code of Ethics and Principle 4 of the Code for Advertising of Food. The Panel then
considered whether the advertisement was saved by hyperbole, provision for which
was allowed in Principle 4 Guideline 4(c) of the Code for Advertising of Food, and
also in Rule 2 of the Code of Ethics. The Panel, having concluded above that a
consumer was likely to be mislead into thinking that the word ‘fresh’ in the
advertisement also was a description of the product, was of the view that the
advertisement could not be considered to contain “obvious hyperbole, identifiable as
such”. Accordingly it ruled that the advertisement was not saved by Principle 4
Guideline 4(c) of the Code for Advertising of Food, or, as noted above, by the
provision for “obvious hyperbole, identifiable as such” in Rule 2 of the Code of
Ethics.
Having concluded that the advertisement made a claim about the SeJuice product
that was inconsistent with the product itself, as detailed on its label and packaging,
the Panel also said that the advertisement was in breach of Principle 4 Guideline
4(d) of the Code for Advertising of Food.
Accordingly, the Panel ruled to uphold the complaint.
Decision: Complaint Upheld