The High court in London has dismissed a challenge by SmithKline Beecham (now GlaxoSmithKline) concerning its advertising for Ribena Toothkind. The decision gives succour to the Advertising Standards Authority (ASA -the self-regulatory body responsible for controlling the content of non- broadcast UK advertisements), which can only operate with the consensus of advertisers, agencies and media owners.
SmithKline (SKB) launched Ribena Toothkind in 1998, promoting it as the first soft drink proven to be kind to teeth. Accreditation from the British Dental Association reinforced the message and featured prominently in advertising. However, three complaints were made to the ASA claiming that certain advertisements breached the British Advertising Code. At issue were the following:
- A poster showing bottles of Ribena Toothkind as bristles on a toothbrush. The complaint here was that the poster misled people into thinking that the drink benefited oral health.
- A magazine advertisement using the same toothbrush image, with a graph comparing the drink to mineral water. The product was "found to be almost as kind to teeth as water". The complaint was that the mineral water used was more acidic than tap water and the comparison was therefore misleading.
- A trade-press advertisement stating that "Ribena Toothkind does not encourage tooth decay."
In July 2000, after a two-year investigation, the ASA council (a panel of 12 independent experts) issued its adjudication, upholding the first and third complaints but rejecting the second. Immediately SKB applied to the High Court v for judicial review.
Its first contention was that the ASA had r engaged an expert adviser who had previously c allied himself publicly with complaints about Ribena Toothkind. Barrister for SKB, David Pannick QC, claimed it was unfair for the ASA to trust an expert who was not impartial. The judge ruled that the ASA has a duty to comply with the rules of fairness and natural justice, which involve taking into account suggestions of personal prejudice. He referred to article six of the European Convention on Human Rights (the right to a fair hearing) but concluded that, taking everything into account, a fair-minded and informed observer would not have thought there was a danger of either the expert or the ASA being biased. He noted that the ASA council had rejected some of the expert's views, and taken into account the views of other experts as well as those of its own members.
SmithKline made three other challenges, all in relation to the third complaint (the claim that Ribena Tooth kind does not encourage tooth decay). The ASA noted that this claim was absolute, and therefore misleading. It ruled that it should be deleted.
The company also complained that, in reaching its decision, the ASA had not given proper weight to the views of the British Dental Association. This organisation had thoroughly reviewed SKB's tests before accrediting the product and had specifically approved the statement "Ribena Toothkind does not encourage tooth decay and has been scientifically proven not to promote tooth erosion."
The judge rejected this complaint on the basis that, although the BDA's approval was relevant (and had been duly considered by the ASA), the authority was not bound by it.
Another point raised by SKB was that the ASA failed to state a finding on whether Ribena Toothkind produced the potential for decay to any significant degree.
The judge accepted that all the evidence indicated that the product did not have a significant potential for decay; however, that was not the question the ASA had to ask itself. Instead, it was: Is this absolute claim justified? In other words: "Does Ribena Toothkind produce the potential for decay to any degree?" In this regard, even "negligible risk" and "no significant risk" are not the same as "no risk". Even SKB's own evidence did not support the absolute nature of the claim made.
SKB's final challenge was that the ASA should have recognised a range of claims that could reasonably be made and asked whether the claim "does not encourage tooth decay" was within that range. It was submitted that this was especially important as it infringed commercial free speech. The company argued the ASA's approach was too restrictive and an unjustified intrusion into the right of free speech under article 10 of the European Convention on Human Rights.
The judge agreed that the British Advertising Code (under which the ASA acts) is indeed 1 restriction on advertising, but said that it was one designed to restrict misleading claims. It was therefore entirely consistent with article 10, the article designed to protect the public. Moreover, the code required the ASA to investigate any absolute claim, to find whether it could be substantiated.
This ruling is a warning to manufacturers of "healthy" food and drink products in the UK. to limit the claims they make for their products. Consumers must be protected against false and misleading claims, especially in this area. But the argument often comes down to a mere matter of syntax.
First published in Brand Strategy in March 2001.