The five statements claimed that dairy is a “superior source of calcium” and holds essential nutrients. The statements included, “Dairy has the building blocks for life. Whether we are a toddler or over 50 – we all need it”, “No other source of calcium can be absorbed as well by the body, other nutrients in dairy foods help the absorption,” and “[Milk] is the richest dietary source of calcium…”
There was a complaint made saying the statements were misleading by their reference to the absolute terms “need”, “essential”, “vital”, and “richest”, which made the claims misleading.
The Code for Advertising Food (CAF) in New Zealand states that nutritional claims should be factual, not misleading, and able to be substantiated.
The complainant also referred to NZ Ministry of Health nutrition guidelines, which suggest that dairy is not necessarily essential to a balanced diet, and that a well-planned vegan diet (i.e. with no dairy) may be just as appropriate at all stages of life.
The ASA Chairman ruled against Fonterra, and noted that several provisions in the CAF were relevant to the case, particularly that food advertisements containing nutrient, nutrition or health claims should observe a high standard of social responsibility.
Principle 2 of the CAF states that advertisements should not mislead consumers, and that all nutritional and health claims should be factual, substantiated, and comply with the Food Standards Code.
Fonterra responded by agreeing to change the wording on its website to moderate the absolute nature of some of the claims. For example, it agreed to change “Dairy is an essential food group” to “Dairy is an important food group”.
According to Australian food lawyer Joe Lederman of FoodLegal, the fact that the complaint was directed to the NZ ASA rather than to other relevant government enforcement agencies is “interesting”.
Mr Lederman said that the complaint could have been addressed either to the Commerce Commission (New Zealand’s equivalent of the Australian Competition and Consumer Commission) or the NZ Ministry of Primary Industries’ food compliance personnel, who are also responsible for enforcement of the Australia New Zealand Food Standards Code in New Zealand. According to Mr Lederman, the consequences for Fonterra could have been harsher, or more New Zealand government agencies could potentially have become involved, had the origin of the complaint been processed or vetted in a different way.
