In the recent matter between Woolworths Holdings Limited (“Woolworths”) and Mrs. Sally Baikie (“the Complainant”), the Advertising Standards Authority of South Africa (“ASA”) had to decide whether Woolworths’ packaging of its Smooth Milk Chocolate Hearts which stated “NO SUGAR ADDED – WITH MALTITOL” was misleading in terms of Clause 4.2.1 of Section II of the Advertising Code of Practice (“the ASA Code”).

Clause 4.2.1 of Section II of the ASA Code provides the following:

“Misleading claims: Advertisements should not contain any statement or visual presentation which, directly or by implication, omission, ambiguity, inaccuracy, exaggerated claim or otherwise, is likely to mislead the consumer”.

The Complainant submitted that Woolworths’ advertising on its Smooth Milk Chocolate Hearts packaging was misleading, by virtue of the fact that it stated "NO SUGAR” with the words “added” in a smaller font adjacent thereto, whereas the tiny print of the “Nutritional Information” on the packaging indicated a sugar content of more than 7%. The Complainant went further to argue that this was not only misleading but also presented a potential health risk to consumers.  

Although Woolworths is not a member of the ASA, it nonetheless responded to the complaint as a gesture of showing its commitment to upholding the ASA Code and “in the spirit of responsible advertising”.

Woolworths submitted that its Smooth Milk Chocolate Hearts did not contain any “added sugar” as defined in terms of Regulation 146 of the Foodstuffs Cosmetics and Disinfectants Act 54 of 1972.

Regulation 146 defines "added sugar” as ”any sugar added to foodstuffs during processing and includes, but is not limited to… honey, molasses, sucrose, with added molasses, coloured sugar, fruit juice concentrate, deflavoured and/or deionised fruit juice and concentrates thereof, high- fructose corn syrup and malt and any other syrup of various origins”. 

Woolworths argued that the sugar present in its Smooth Milk Chocolate Hearts was from the lactose naturally present in milk solids, and therefore, sugar had not been "added” per se during the processing of its Smooth Milk Chocolate Hearts. It alleged that its advertising was thus not misleading and did not contravene Clause 4.2.1 of Section II of the ASA Code and was compliant with section 14(2)(c) of Regulation 146 which states as follows:

“Where an additive, which is permitted for a particular class or category of foodstuffs under specific regulations under the Act, is not used in the foodstuff, but is naturally present in the ingredients of the foodstuff, the claim, declaration or implication, when used, shall be worded as follows: "no added (name of additive)"

The ASA applied the same principle it did in the Woolworths vs D Taylor (10 March 2005) complaint ruling, which found that the “suitable for vegetarians” statement was not misleading by the mere fact that “the hypothetical reasonable vegetarian consumer will inspect a product prior to purchase to ensure that it falls within the particular vegetarian category ascribed to”. Similarly, the ASA was of the view in this matter that “If the consumer has a particular reason for not eating sugar, they will consult the ingredient list”. The ASA ruled in favour of Woolworths by finding that the statement “NO SUGAR ADDED – WITH MALTITOL” was not misleading in terms of Clause 4.2.1 of Section II of the ASA Code in that the ingredient list of Woolworth’s packaging was clear and unambiguous to consumers with special dietary needs.

Whilst the ASA’s ruling takes into consideration that consumers with strict dietary requirements are unlikely to be misled by the “NO SUGAR ADDED – WITH MALTITOL” claim, it is still questionable why Woolworths saw the need to use a smaller font for the word “added”. It is not just by chance that the Draft Guidelines to the Draft Regulations Relating to the Labelling and Advertising of Foods (R429 of 29 May 2014), provides that “Legal font sizes … shall … be easily legible and sufficiently prominent to help consumers make their choice in full knowledge of the facts”. The ASA ruling does not seem to take into consideration instances where, for example, a non-diabetic person, who may not be as educated about strict dietary requirements, can also purchase these products on behalf of a diabetic person/consumer and is less likely to take the additional step of inspecting the product and ingredient list more vigorously prior to purchasing it.

Nonetheless, the ASA’s ruling should alert those that are in the business of food packaging to ensure that food labels are not only in compliance with the Advertising Codes, but that they also comply with the Food Labelling Laws and Regulations, along with Consumer Protection Laws.

Written by Koketso Molope, KISCH IP