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Embargoed press release 29 January 2014 (ASA ruling to be published 29 January 2014, available under embargo).

The Advertising Standards Authority (ASA) has upheld complaints brought by Baby Milk Action against a Danone television advertisement for Cow & Gate baby milks having found it misled parents. Danone subsidiary, Nutricia, has been warned not to repeat the advertisement in the current form. Click here for the ruling on the ASA website.

While welcoming the ruling, Baby Milk Action points out that it has won repeated complaints about formula advertising, but with no fines or requirement to print corrections and little reporting (particularly by the media that ran the advertisements in the first place) companies reap the benefits of misleading parents without any consequences. Baby Milk Action also points out that legislation makes this and similar advertisements illegal, but says little action is taken by enforcement authorities and the Department of Health. The Department of Health has been criticised for accepting Danone and Nestlé as partners in its health education programmes as this creates a conflict of interest, while these companies dismiss its guidance on how the legislation should be interpreted.

The news of misleading marketing in the UK breaks following exposure of Danone's subsidiary in China bribing health workers to promote infant nutrition products and, this week, allegations from a whistle blower about bribing of doctors by the Indian subsidiary acquired by Danone in 2012 (see Dairyreporter report Nutricia India bribed doctors to prescribe infant formula, whistleblower claims). Last week the industry body to which Danone belongs was refused access to lobby policy makers at the World Health Assembly (press release).

Parents "ripped off" as Danone promotes an unnecessary product with misleading claims

The ASA found the Danone "Feed their personalities" beach babies television advertisement for Cow & Gate follow-on formula was misleading when it claimed: 

"Cow & Gate follow-on milk provides Calcium for strong bones"; and "Cow & Gate follow-on milk provides … iron for brain development".

Companies may only make claims as provided for in legislation and the ASA found that Danone had changed the wording and "consumers would not understand the adapted wording used in the ad to have the same meaning as the authorised wording." 

Mike Brady, Campaigns and Networking Coordinator at Baby Milk Action, said:

"Advertisements such as Danone's suggest that follow-on milks provide health benefits, but they are unnecessary products and Danone is simply ripping parents off, using false claims to make them think they need these milks. Yes, calcium is needed for normal growth and bone development in children and iron contributes to normal cognitive development, but these are provided by a normal diet and Danone's products offer nothing special other than a way for the company to fill its pockets. Providing nutrients via fortified milks is also potentially harmful. The cost of these multi-million pound advertising campaigns goes onto the price of the milks making them even more expensive.

"We have won repeated cases proving that claims made for Danone’s Cow & Gate and Aptamil brands and Nestlé's SMA brand do not stand up to scrutiny, but they continue using them regardless because the industry-funded ASA is a toothless body requiring no corrections and levying no fines. Many of these practices also break the law in our view, but Trading Standards and the Department of Health are failing to hold companies to account - companies should be prosecuted and fined for repeated violations."

Follow-on milks are marketed for use from 6 months of age, but have been described as "unnecessary" products by the World Health Organisation both since they were introduced in the 1980s to try to bypass restrictions on the advertising of infant formula (for use from birth) and more recently in July 2013 (press release). The branding is now being stretched further into so-called "growing-up milks". Investigations by the First Steps Nutrition Trust suggest that fortified milks are a potentially harmful way to deliver extra nutrients to children.

Infant formula can be used for the first year if babies are not breastfed. NHS guidance states: "Follow-on milks are available for babies over six months but there is no need to change over to these. Cows' milk can be mixed with food from six months and whole cows' milk can be given as a drink from one year."  

Baby Milk Action has also won complaints against claims that Aptamil and SMA are both the "best" follow-on milks and other false claims. Danone and Nestlé, respectively, continue to claim their milks are the best despite these rulings (Nestlé did not own SMA at the time the ruling was made in September 2012, but continues to make the false claim).

First Steps Nutrition Trust has published a report on fortified milks that states:

"Fortified milks are frequently high in sugar and are likely to contribute to higher energy intakes, which may contribute to chronic disease, and the voluntary fortification of foods and drinks needs to be questioned as there is increasing evidence that giving additional nutrients to those who do not need them may have adverse consequences."

Baby Milk Action has also raised concerns about Danone promoting its Cow & Gate milks through sponsorship of charities Tommy's and Barnardos Ireland.

For further information contact Mike Brady on 07986 736179.

Baby Milk Action is producing DANONO mugs with the logo shown below for those wishing to oppose Danone sponsorship - click here.

Further information for editors

Danone advertising also breaks marketing laws - but no action taken

The advertisements promote the Cow & Gate brand name used for the full range of formulas, which is specifically prohibited under the UK Infant Formula and Follow-on Formula Regulations (2007) as explained in associated Guidance Notes. 

The Department of Health was given responsibility for the Guidance Notes on interpreting the law on 1 October 2010 and Baby Milk Action has repeatedly called on it and Trading Standards to hold companies to account. The provisions on advertising are specifically being broken:

"47. When advertising to the public or health care professionals, formula manufacturers must comply with the requirements of regulations 18, 19, 21 and 22 together. Read together, the aims of these regulations are to ensure that:

• infant formula is advertised only in scientific publications or for trade purposes (regulation 21).

• consumers recognise that advertisements for follow-on formula relate exclusively to products for older babies and not infant formula. Such advertisements should not promote, either directly or indirectly, infant formula, or formula milks/bottle-feeding in general. (regulations 18, 19 and 22)

"48. In order to achieve compliance, companies will therefore need to ensure that formula advertising does not: • promote a range of formula products by making the brand the focus of the advert, rather than specific products (e.g. where specific products are mentioned only in a footnote or in a picture of a tin of formula within the advertisement)...focus primarily on the promotion of ingredients, or the effect of ingredients, which are common to both follow-on formula and infant formula."

Danone does exactly what the guidance notes state it should not do. Danone has dismissed similar concerns when Baby Milk Action has raised this in writing with its French HQ stating (letter 6 November 2013): "we do not accept that the Guidance Notes have the ability to 'control' or 'prohibit' certain practices."

 When the Guidance Notes were adopted following consultation with the industry and others, Parliament was told by the Minister for Public Health of the time (January 2008): "That guidance is now operational, and it shows how the regulations should be interpreted."

Danone's Cow & Gate labels also break the requirements by using common branding and colours across the range.

According to the Guidance Notes, to comply with the law: "51. the specific terms 'infant formula' and 'follow-on formula' should be clearly featured on the packaging, in a font size no smaller than the brand name." Yet the Cow & Gate brand name, logo and red colour dominates the packaging.

Campaigners point out the Department of Health has a conflict of interest as it is in partnership with Danone - and Nestlé, owner of the SMA brand of formula since December 2012 - through one of its health education programmes, Change4Life.

Mike Brady said:

"It will take a Court ruling to give a binding interpretation of the Regulations, but no cases are being brought. In the meantime, Danone's position is total contempt for the Guidance Notes setting out how the industry, enforcement officers and others shold interpret the law. The Department of Health is responsible for the Guidance Notes and people may ask how it can accept companies such as Danone and Nestlé as partners in health education programmes when they willfully break their formula marketing requirements."

Department of Health conflict of interest in working in "partnership" with Danone and Nestlé

Danone and Nestlé are partners in the Department of Health Change4Life health education programme.

Baby Milk Action and its partners in the Baby Feeding Law Group (BFLG), a coalition of leading health professional and mother support groups, opposed industry sponsorship of Start4Life, a health education programme covering infant feeding issues. Change4Life is a companion programme for older children and adults.

Over 1800 people have signed a petition calling for the Department of Health to end Change4Life links with Danone and Nestlé: https://www.change.org/petitions/department-of-health-for-england-and-wales-end-change4life-links-to-nestlé-and-danone