Food advertising: Beware the puffery
‘Energy-boosting’, ‘slimming’ and ‘carb-conscious’ are just some of the many promises silently paraded on food products intending to entice themselves from the shelves into our food baskets. But just how much is food advertising allowed to embellish reality?
“Red Bull Gives You Wings”: the caffeinated soft drink’s infamous slogan landed them in hot water back in 2013 when American consumer, Benjamin Careathers filed a lawsuit against them for false advertising.
According to an article published by the BBC in 2014, Careathers was not indignant because he didn’t sprout wings after consuming the soft drink, instead, he felt misled after the revelation that he could buy a cup of coffee for half the price of a Red Bull for the same caffeine kick.
As stipulated on their website, one 250ml can of Red Bull contains approximately 80 mg of caffeine. In some cases, this has been found to be less than the amount of caffeine in a cup of filter coffee which can contain approximately 140 mg of caffeine.
Red Bull lost the lawsuit and had to cough up over $13-million (R139-million at the 2014 exchange rate of R10.7 to the dollar) in compensation, entitling customers who bought Red Bull energy drinks between 1 January 2001 and 3 October 2014 to up to $10 (R107). Despite the million-dollar lawsuit, Red Bull maintains the slogan today but has added two ‘i’s in the word “wiiings”.
‘Energy-boosting’, ‘slimming’ and ‘carb-conscious’ are just some of the many promises paraded on food products intending to entice themselves from the shelves into our food baskets. But just how much can food advertising embellish reality and how do we know when we’re being hoodwinked?
What does the law say?
Aptly put in a 2004 paper titled “Food Advertising and Marketing Directed at Children and Adolescents in the US” by Mary Story and Simone French, persuasive food advertising and marketing is a “potent force” behind the food choices we make.
In South Africa, there are a number of lines drawn in the Consumer Protection Act 68 of 2008 that prohibit product marketers and advertisers from making false, misleading or exaggerated claims including:
- Under Part E: Right to fair and responsible marketing of the Act the general standards for marketing of goods or services states that, “A producer, importer, distributor, retailer or service provider must not market any goods or services in a manner that is reasonably likely to imply a false or misleading representation concerning those goods or services, as contemplated in section 41; or in a manner that is misleading, fraudulent or deceptive in any way, including in respect of the nature, properties, advantages or uses of the goods or services…”
- The Act furthers under Part F: Right to fair and honest dealing: False, misleading or deceptive representations that, “In relation to the marketing of any goods or services, the supplier must not, by words or conduct directly or indirectly express or imply a false, misleading or deceptive representation concerning a material fact to a consumer; use exaggeration, innuendo or ambiguity as to a material fact, or fail to disclose a material fact if that failure amounts to a deception…”
Apart from the Consumer Goods and Services Ombud, to regulate the content of South African advertising, the Advertising Regulatory Board (ARB), which replaced the Advertising Standards Authority (ASA) of South Africa when it went into liquidation in 2018, was founded.
Funded by the marketing and communication industry, the ARB is an independent body that uses the Code of Advertising Practice based on the International Code of Advertising Practice, “prepared by the International Chamber of Commerce” to govern its decisions and rulings on South African consumer complaints.
But brands continue to take liberties
Despite South Africa’s marketing and advertising legislation and regulatory systems, the ARB has reams of consumer complaints and rulings about food products to electronics and airlines as far back as 2018 that are accessible to the public via their website.
In November 2019, Nicola Millson and Peter de Fouw filed a complaint with the ARB taking issue with Karan Beef’s claim: “Want a Healthy Lifestyle? Make beef part of your daily diet.”
Millson and de Fouw took issue to Karan Beef linking red meat to a ‘healthy lifestyle’. The board found the claim to be misleading and Karan Beef agreed to remove the claim from their packaging.
Also in 2019, Siebert Kruger and Louis Fourie filed a complaint with the ARB against the nutritional supplement, Bio-Strath, for a radio and television advert claiming that the supplement “improves memory and concentration”.
Natural nutritional supplements like Bio-Strath are available without a prescription and are often not required to be evaluated by the South African Health Products Regulatory Authority (Sahpra) before making it to the shelves. Complainant Mr Kruger noted, “Academic grades are improved by studying, not by consuming supplements” adding, “The product was being marketed as a ‘quick fix’ for poor academic performance, which is blatantly opportunistic”.
The ARB found the claim to be misleading and unsubstantiated; the claims that sparked the trial were nearly 60 years old and based on a sample set of 24 school girls. Bio-Strath had to remove both the television and radio adverts.
A food label copywriter, who asked to remain anonymous for fear of reprisals, has noticed in her industry that there are a lot of liberties taken with the word “health”.
“It’s heavily legislated for good reason. You know, almonds are generally considered to be healthy, unless you’re deathly allergic to almonds and then they can kill you. Or, unless you look at how much water almond production uses and consider the health of the planet. So when I see ‘healthy’ written in ads or on the social media of big brands who are definitely aware of legislation it is problematic,” she says.
And lines get slightly blurry when it comes to an advertising technique known as ‘puffery’.
Advertising self-regulatory bodies allow for advertisers to puff, as Associate Professor in Visual Communication at Tshwane University of Technology, Rudi de Lange explains; “Puffery is an exaggeration — usually connected to humour — but to such an extent that the reasonable person would know that it is not true”.
De Lange says that Bar One chocolate’s slogan promising a ‘25-hour day’, is an example of puffery. “We know that a day is 24 hours — so the 25-hours claim is an obvious non-truth and exaggeration of the product’s abilities,” de Lange says.
On the point of puffery, the ARB states the following, “Puffery Value judgments, matters of opinion or subjective assessments are permissible provided that: it is clear that what is being expressed is an opinion; there is no likelihood of the opinion or the way it is expressed, misleading consumers about any aspect of a product or service which is capable of being objectively assessed in the light of generally accepted standards. The guiding principle is that ‘puffery’ is true when an expression of opinion, but false when viewed as an expression of fact”.
De Lange recently published an article in The Conversation titled “How false advertising misleads consumers in South Africa”.
In it, he refers to a paper he wrote for the South African Journal of Sports Medicine published last year, detailing the misleading labelling claims of a testosterone booster.
While the advertisement of the testosterone-booster presented a scientific paper to back up their claims, De Lange found that a lot of context was left out of the labelling such as the size of the sample set — 23 men — and the condition of the sample set — the study took place at an infertility clinic over just 12 days.
“Clinical trials are very expensive, go through several stages, and can take several years. The last stage of a clinical trial requires a manufacturer to include a large group of participants to see if the product works as planned.
“An advertiser that makes direct or indirect claims that a supplement can boost testosterone, help with weight-loss, or improve school performance must have proof for these claims. Consumers are within their rights to ask advertisers to supply the evidence for their claims,” writes de Lange for The Conversation.
He adds: “The scientific evidence must be about the specific product that an advertiser promotes. The evidence must be objective and open for independent scrutiny.”
Food advertising, like any advertising, consists of marrying copy with visuals.
The above-mentioned food copywriter explains that she usually employs two ways to communicate a food product. The first way is to underscore what makes the food unique.
“Sometimes it’s about where the food comes from — how it’s grown or made. Sometimes it’s about what’s not in the food — like preservatives or sugar. If it won an award I might write about that. If it’s a new product I might write about that,” she says.
The second way is to ‘sell’ a lifestyle or emotion like ‘togetherness’ at Christmas time or ‘bonding’ with a loved one. “So it’s not about the Christmas meal, it’s about family seeing each other at Christmas after a long hard year or two apart. The meal just brings everyone together. Or it’s about a parent who has time to read a story to their children because they saved time ordering something convenient for dinner,” she explains, adding that she has seen some puffery in the industry when marketers claim that certain foods are ‘an experience’ or ‘life-changing’, but that the bottom line for her when writing copy for food advertising is whether something is factual or not, and reasonable or not.
De Lange says children, in particular, are easily targeted by marketers and advertisers promoting sugary, high-salt foods and snacks because they are often more impressionable, easily persuaded and vulnerable.
In a 2015 paper titled “Ethics and packaging design: Marketing of sugary breakfast cereals to South African children”, de Lange and graphic designer and design researcher Cwayita Swana questioned the ethics of “marketing unhealthy breakfast cereals to children through the use of misleading and persuasive graphics and texts”.
De Lange and Swana deduced that food products containing high amounts of sugar, like breakfast cereals, are hidden behind ‘friendly’ and ‘welcoming’ cartoon characters notably displayed “against bright background colours in order to be eye-catching to the young consumer”.
“The packaging designs and themes depict fun, enjoyment as well as happy, upbeat families and even employ text and graphics to portray a healthy theme,” furthered de Lange and Swana.
De Lange also refers to a postgraduate student that looked at marketing techniques (from copy to colour) used on food product packaging to catch a consumer’s attention, in a dissertation. The student, Akinjide Akinwale, looked at misleading packaging design with the focus on images that misrepresent the product and slack-fill occurrence.
Akinwale’s work has shown that manufacturers and advertisers potentially mislead consumers by exaggerating or misrepresenting the product’s colour, texture, shapes, composition, and design on the packaging and advertising material.
“There is often a mismatch between the image of the product and the product in the package,” says de Lange.
“Advertisers will always be able to mislead consumers by exaggerating the benefits of their products (‘health giving’ processed foods), focusing on hedonic variables — sweet-tasting and bright colours like sugary children’s breakfast cereals,” says de Lange.
“It will take more effort to counter misleading food advertising than the effort advertisers use to mislead consumers,” he adds.
De Lange furthers that the more marketing hype there is about a product, the less inherent value of the product.
“We don’t need an advertiser telling us a potato is healthy. Still, we need an advertiser telling a mother that a bowl of sugary breakfast cereal is ‘enhanced with vitamins’,” says de Lange.
How can we protect ourselves?
“I don’t know,” De Lange says, adding, “It is my guess that if we can teach a child to have a critical and analytical perspective (pre-teen), that such a child will have a higher probability of avoiding exploitation in life than a child without analytical skills”.
De Lange implores people to remember the old maxim, ‘if it sounds too good to be true then it is not true’ adding, “If consumers can protect themselves by having knowledge and not buying junk food and supplements that we do not need (and that do not perform as advertised), then there will be no market for these products”. DM/ ML
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