Posted 04 April 2012
A consumer lodged a consumer complaint against packaging for Coca Cola’s Glaceau “Vitaminwater”. The complainant submitted that the name of the product is misleading as it induces users, particularly children and young adults to purchase the product. He added that to refer to the organisation “Glaceau” as “the centre for responsible hydration” on the labelling was also misleading. The “cold hard truth” is, however, that this product is fortified sugar water, containing just over five teaspoons of sugar per bottle.
The ASA ruled in favour of the Coca Cola’s Glaceau “Vitaminwater”.
|Vitamin Water / HA Steinman / 19027|
Ruling of the : ASA Directorate
In the matter between:
Dr Harris Steinman Complainant(s)/Appellant(s)
Coca-Cola South Africa A division of Coca-Cola Africa (Pty) Ltd Respondent
03 Apr 2012
Dr Steinman lodged a consumer complaint against packaging for Coca Cola’s Glaceau “Vitaminwater”. The range contains several different flavours, each in differently coloured labelling which reflect the product name, the particular flavour, a short descriptor and the “nutrition information”.
By way of example, the “energy” variant is described as a “tropical citrus flavoured nutrient enhanced energy drink”. The creative copy states as follows:
“in soccer (excuse us mexico, spain and Italy, we mean ‘futbol’), there isn’t a more exciting moment than when the announcer screams ‘laduuummmmaaaaaa’ (yelling ‘oooffffsiddde’ never quite caught on). with that said, we added b vitamins, caffeine and guarana to give an extra kick(pun intended).
so now when you’re watching soccer, playing soccer, coaching soccer, driving kids to soccer or doing anything that starts with ‘socc’ and ends with ‘er’, you too can have the energy of a lunatic to yell ‘laduuummmmaaaaaaa’.”
In essence, the complainant submitted that the name of the product is misleading as it induces users, particularly children and young adults to purchase the product. He added that to refer to the organisation “Glaceau” as “the centre for responsible hydration” on the labelling was also misleading. Furthermore, that the labelling and slogan imply that benefits are derived from drinking the water.
The “cold hard truth” is, however, that this product is fortified sugar water, containing just over five teaspoons of sugar per bottle. The complainant made reference to a dispute about this product and its advertising claims in the USA as well as in the UK.
The complainant explained that a group of Grade 9 students at a local school conducted research on their fellow scholars’ perceptions about this product. After being informed regarding the true content of this product, 82,5% of them felt that the name was misleading.
RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the complaint the following clauses of the Code were taken into account:
• Section II, Clause 4.2.1 – Misleading claims
• Section II, Clause 14.2 – Children’s credulity and lack of experience
• Appendix M, Clause 3.1 – Interpretation
• Appendix M, Clause 6.1 – Responsibility
• Appendix M, Clause 8.1 – Social values
Attorneys Adams and Adams, on behalf of the respondent, submitted a detailed response, explaining that the Vitaminwater range has been sold in South Africa since 2009, and was the first range of fruit flavoured drinks with added vitamins and minerals to be launched in South Africa. The drinks are made using highly purified water, treated by reverse osmosis and natural sugars. Meaningful levels of nutrients are added to the drinks and these differ by variant. The specific vitamins and minerals contained in each product are clearly listed on the product labels.
The nutritional importance of these various vitamins and minerals are well documented and widely accepted that they need no explanation. It is commonly known that certain essential nutrients are required in certain quantities to meet the body’s daily nutritional requirements and to support its normal functioning. This is the premise upon which food labelling regulations relating to the disclosure of vitamin and mineral content are based and the “Required Dietary Allowance” of these nutrients is referred to on food products, beverages, vitamin supplements and the like.
The vitamins contained in the Vitaminwater are present in nutritionally significant quantities. When compared to regular soft drinks, the Vitaminwater beverages provide consumers with a convenient way to supplement their dietary intake of various vitamins and minerals, usually with less sugar than such drinks.
With regard to the marketing of the product, 80% of the marketing and advertising conducted has been below the line in the form of dedicated sampling, in store point of sale materials, cooler placements and public relations activities. The products and associated advertising is targeted and focuses on a very specific consumer, being high income, educated 18-25 year olds in the LSM A group. This is apparent from the hyperbolic, tongue-in-cheek nature of the advertising copy used in the promotional materials and on the labelling of the product. The product is sold in top-end grocers, petrol stations, coffee shops, gyms and the like and is not aimed at children. When viewed from the perspective of the actual target market, neither the name “vitaminwater” nor the reference to Glaceau as “The centre for responsible hydration” is misleading.
In general, the brand reference to “vitaminwater” cannot be misleading, as the product contains both vitamins and water. While the complainant makes much of the sugar content, it should be noted that there is nothing on the label that suggests that the product does not contain sugar. In fact, the label clearly states “flavoured drink” which communicates to consumers that is sweetened with sugar. The actual sugar content is also disclosed on the labelling.
With regards to the variant names, most of these do not have any real meaning and make no claims in respect of the products. It has, however, for reasons unrelated to the complaint, decided to cease using the variant names “energy” and “revive” during the first quarter of 2012.
Lastly, the term “Centre for responsible hydration” is meant to be humorous nomenclature, in line with the tongue-in-cheek nature of the advertising copy. It again emphasised that the product is not advertised to children and that it does not conduct any activities at or near schools. There is nothing on the labels that would encourage poor nutritional eating habits or an unhealthy lifestyle.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.
At this point, it should be noted that the labelling attached to the complaint and that supplied by the respondent differs slightly, most notably in the manner in which the nutritional information is displayed and the creative copy used. For example, the “futbol” example alluded to at the top of this ruling now references the wide “blanket term” and possible meanings for “energy”, and how this particular variant will “… get you through a ‘[email protected]#&%-liong-can-this-meeting-go-on-for???’ meeting …” In addition, the new labelling also contains five “badges” detailing the levels of “Energy”, “Sugar”, “fat”, “Saturates” and “Sodium”.
However, these differences do not materially impact on the decision made. For the sake of clarity, however, the Directorate notes that in another consumer complaint, which was ultimately abandoned by the complainant, the respondent clarified that its old labelling (which matches the examples supplied by the complainant) has since been replaced with the newer labels, which were submitted as part of the official response in this matter.
The complainant took issue with the following:
That the product name “Vitaminwater” is misleading as it gives the impression of health benefits to children and young adults.
The reference to Glaceau as the “Centre for responsible hydration” is misleading.
The flavours of the labels deceive consumers into thinking that these are the benefits of the particular flavour.
The product claims are against the principles of Appendix M, specifically Clauses, 3.1, 6.1, and 8.1. The complainant considers the advertising to contravene these clauses based on a study by scholars from a Stellenbosch school.
In the first instance, the Directorate is inclined to accept the respondent’s argument that it targets and promotes this product to young adults, and not children. When one considers the creative copy on each label, which contains, inter alia, references to “Mary … with the fluffy white lamb … [who is actually] a heavy metal rocker” called Mary Hadderlam, a “young lady in our accounts dept called cher” who has a “sunny disposition”, or the fact that it called its one variant “XXX” to avoid having to deal with “a wonderfully unimaginative, nay-saying chap with a box moustache and a forehead-hugging fringe, the Directorate is hard pressed to believe that this is catered for children, especially children of 12 and under, as is relevant for the purpose of Appendix M. Similarly, the packaging contains no colourful animation or figurines which would likely appeal to children.
This already negates an allegation that children would be affected by the labelling.
Irrespective of this, however, the same allegations were made about the labelling and its effect on young adults, which still necessitates consideration.
The respondent submitted that the product contains both vitamins and water and is not misleading. The Directorate also notes that in many instances, the vitamins contained in the relevant variants are 25% or more (in some cases 200%) of the recommended daily allowance (or Guideline Daily Amounts). This at least suggests that the references to vitamin within the water are justified.
Furthermore, the labels currently on the market clearly states “flavoured drink”, and discloses the actual sugar content. This communicates to the consumer that the product is sweetened, and negates an argument that the respondent is trying to hide the fact. While the Directorate accepts that this is not necessarily as clear on the packaging examples submitted by the complainant, it has already received confirmation from the respondent that this labelling has made way for the new labels, which clearly lists this ingredient.
The name of the product is “vitaminwater”, which essentially communicates two things to consumers: Firstly that the product contains vitamins and secondly that these are infused in water. From the confirmation sent by the respondent it appears that the product does in fact contain vitamins as well as refined water. There is therefore, no misrepresentation with regards to the product name.
While the Directorate accepts that the complainant’s survey appears to suggest that Grade 9 learners (who by definition fall outside the parameters of Appendix M by virtue of their age) were somewhat confused about the product, it is interesting to note that 70.1% of the children knew that vitaminwater contained sugar.
With regards to the claim “made for: the centre for responsible hydration (aka glaceau coca-cola south africa)”, the Directorate is of the opinion that this would likely be interpreted as puffery much like the claim for a university to be a centre for responsible leadership. This is especially true when one considers the clearly exaggerated and humorous creative copy accompanying each variant.
Based on the above, the reference to “vitaminwater” as well as the “Centre for responsible hydration” is not misleading in terms of Clause 4.2.1 of Section II of the Code.
This aspect of the complaint is accordingly dismissed.
The Directorate notes that Vitaminwater is available in the following flavours:
1. energy (b+guarana) – Tropical citrus flavoured
2. essential (c + calcium) – Orange flavoured drink
3. power-c (c+b’s) – Dragonfruit flavoured drink
4. revive (b+potassium) –Fruit punch flavoured drink
5. super-v (a-zinc) –Lemon flavoured drink
6. xxx (triple antioxidants) –Berry flavoured drink
The complainant argued that the references to “energy”, “essential”, “power-c”, “revive”, “super-v” and “xxx” are misleading to consumers as they would assume that they would be receiving benefits implied by these descriptive names.
The respondent submitted that the variant names do not have any real meaning and certainly make no claims in respect of the products. Words such as “super” or “power” are laudatory and hyperbolic terms. Terms such as “power-c” and “super-v” do not have any real meaning and make no claims in respect of the products. The term “xxx” also, does not have any real meaning. It added that it would cease using the variants “energy” and “revive” in the first quarter of 2012.
The ASA has a long standing principle which holds that where an advertiser provides an unequivocal undertaking to withdraw or amend its advertising in a manner that addresses the concerns raised, the undertaking is accepted without considering the merits of the matter.
As the respondent’s undertaking to cease using the variant names “energy” and “revive” addresses the complainant’s concerns, there is no need for the Directorate to consider these variants.
The undertaking is therefore accepted on condition that the references to variants called “energy” and “revive” are withdrawn in its current format within the deadlines stipulated in Clause 15.3 of the Procedural Guide, and is not used again in future.
Insofar as the remaining variant names “essential”, “power-c”, “super-v”, and “xxx” are concerned, the Directorate does not agree with the complainant.
The Directorate notes that the descriptor following each flavour-variant is used as hyperbole. This is evident when read in conjunction with the accompanying body copy.
An example of this is the Orange flavoured drink. The descriptor says, inter alia, “essential (c+calcium)”. The body copy then expands on this and states:
“when it comes to words that carry weight in this crazy language called English ‘essential’ is right up there with the heavy hitters. If something is ‘essential’ then that’s that, no questions. it’s the boss of any sentence that it finds itself in. if someone says that its ‘essential’ to read the instructions before operating a helicopter for the first time, then take our advice and do as they say. So when we say ‘kick start your day with ‘essential’ it’s high in vitamin c and a source of calcium. we’re only doing it for your own good. try it, the English language is seldom wrong”
Another example of the apparent hyperbole comes from the “power-c (c+b’s)” variant:
“hercules Feinberg is not a happy man. he’s just been retrenched from the job in the circus as ‘the world’s strongest man’, it appears that the ability to pick up a caged lion using only an index finger just doesn’t cut it anymore and he’s been replaced by some scrawny chap in a lycra leotard who juggles vegan-friendly marrows whilst delivering poetry. when asked the reason for the change, the cockney ringmaster said ‘muscles are passé, luv. strengf comes from wiffin and that’s the new power, see?’ … talking of power-c, this dragonfruit flavoured drink is very high in vitamin c and is a strong source of vitamin b’s. go on. ignite your inner strongman”.
It is not likely that any reasonable person, or young adult for that matter, would interpret product variants called “essential”, “power-c”, “super-v”, and “xxx” as efficacy claims.
As such the remaining product variant names “essential (c+ calcium)”, “power-c (c+b’s)”, “super-v (a-zinc)”, and “xxx (triple antioxidants)” are not misleading in terms of Clause 4.2.1 of Section II of the Code.
Over and above the provisions dealing with “Misleading claims”, the complainant also based his complaint on the provisions of Appendix M, specifically Clauses 3.1, 6.1, and 8.1, in conjunction with Clause 14.2 of Section II.
Clause 3.1 of Appendix M states, inter alia, “Nutrition information and claims should not be judged by the likely perception of the reasonable person at whom the advertising is directed or who is likely to be exposed to advertising.”
The Directorate notes that this is merely a clause explaining how food and beverage advertising should be interpreted and clearly not a substantive principal that can be contravened. As such the respondent cannot be said to have contravened it.
Clause 6.1 of Appendix M states that food and beverage advertising, including promotions, should not encourage poor nutritional habits or an unhealthy lifestyle in children, or encourage or condone excess consumption.
The respondent submitted that there is nothing on the label that would encourage poor nutritional habits or an unhealthy lifestyle. It added that vitaminwater contained essential nutrients with half the calories and sugar of other soft drinks.
The complainant did not elaborate or provide any grounds as to why the above clause has been contravened. It would appear from reading the complaint that the argument here is still related to the sugar content and the implied efficacy of the variant names. This issue has been considered and disposed of above under the provisions of Clause 4.2.1 of Section II and need not be repeated here save to confirm that the Directorate is satisfied that the reasoning elaborated on above still holds true here.
There is nothing in the complaint that identifies anything that could reasonably be considered “encouraging” poor nutritional habits or excess consumption
This aspect of the complaint is accordingly dismissed.
Clause 14.2 of Section II states, inter alia, that “Advertisements should not exploit the natural credulity of children or their lack of experience and should not strain their sense of loyalty”. It also provides a few examples how this could be done, such as making children believe that they would in some way be inferior unless they have the product.
Clause 8.1 of Appendix M states that children of 12 years old and under are impressionable, food and beverage advertising should not mislead children about product benefits from use of the product. Such benefits include, but are not limited to, the acquisition of strength, popularity, growth, proficiency and intelligence.
It should be noted that in terms of Appendix M, “children” are specifically defined as those of 12 and under, whereas Clause 14 of Section II (as read with the definition in Clause 4.10 of Section I) regards “children” as someone who is, or appears to be 18 and under.
The Directorate is satisfied that the product is not targeted at children of 12 and under. Insofar as children between the ages of 13 and 18 are concerned, the complainant has not managed to convince the Directorate that these children are likely to have their credulity or sense of loyalty strained as a result of the labelling used.
In any event, reading the complaint it appears that this issue relates to the variant names, which has already been considered and dispose of above.
Accordingly, the advertising is not in contravention of Clause 8.1 of Appendix M of the Code for the reasons advanced by the complainant. Similarly, the labelling is not in contravention of Clause 14 of Section II of the Code.
The complaint is accordingly dismissed.