Complaint: 17/340

Fonterra Group Ltd, Television

Details

Complainants
advertisers
Fonterra Group Ltd
Year
2017
Media
Television
Product
Food and Beverage
Clauses
Decision
Not Upheld
ASA Links
Website Listing
Decision Document

Document





COMPLAINT NUMBER
17/340
COMPLAINANT
M. Jonassen
ADVERTISER
Fonterra Group Ltd
ADVERTISEMENT
Fonterra Group Ltd, Television
DATE OF MEETING
14 November 2017
OUTCOME
Not Upheld


SUMMARY

The television advertisement for Fonterra showed dairy farmers Mark and Deborah talking
about milk powder concentrate and its role as a nutritional supplement in the recovery of
Dylan Davidson from a serious accident. The advertisement showed various aspects of
Dylan's recovery, including physiotherapy and wheelchair sport. The advertisement
concludes with the onscreen message: "From here to everywhere. Fonterra."

Complainant, M. Jonassen, was concerned the advertisement was misleading because it
was "insinuating that dairy somehow aids in the recovery and rehabilitation of serious
accidents" which was not able to be substantiated. The Complainant said the advertisement
was insensitive.

The Advertiser provided information to support that milk powder concentrate, used as an
ingredient in specialised medical foods, provides essential nutrition as a part of recovery
from serious accidents and il ness.

The Complaints Board said the advertisement did not create a misleading impression and,
taking into account the information provided by the Advertiser, said it was unlikely to mislead
consumers. It said there was nothing about the depiction of Dylan's recovery that was likely
to cause serious or widespread offence to most people taking into account prevailing
community standards.

The Complaints Board ruled the advertisement was not in breach Principle 1 or 2 of the
Code for Advertising Food or Rule 4 of the Code of Ethics and had been prepared with a
high standard of social responsibility.

The Complaints Board ruled the complaint was Not Upheld.

[No further action required]

Please note this headnote does not form part of the Decision.




COMPLAINTS BOARD DECISION

The Chair directed the Complaints Board to consider the advertisement with reference to
Principles 1 and 2 of the Code for Advertising Food and Rule 4 of the Code of Ethics. This



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required the Complaints Board to consider whether the advertisement observed a high
standard of social responsibility and whether it was likely to mislead of deceive consumers,
abuse their trust, exploit their lack of knowledge or without justifiable reason, play on fear.

The Complaints Board were also required to consider whether the advertisement contained
anything which, in light of general y prevailing community standards, was likely to cause
serious or widespread offence taking in to consideration the contact, medium, product and
audience to whom it is directed.

The Complaints Board ruled the complaint was Not Upheld.

The Complaint
Complainant, M. Jonassen, was concerned the advertisement was misleading because it
was "insinuating that dairy somehow aids in the recovery and rehabilitation of serious
accidents." The Complainant also said, in part: "there is no evidence to support dairy having
any healing properties."

The Complainant raised another concern the advertisement was insensitive as in their
experience "dairy has nothing to do with it, it is the hard work of the patient and Doctor."

The response from Advertiser, Fonterra
The Advertiser responded to the concerns raised by the Complainant the advertisement was
misleading and insensitive to the range of factors involved in rehabilitation.

The Advertiser said, in part: "The advertisement in question shows visuals of Dylan
exercising with the farmer voiceover speaking to the nutritional benefits of the milk protein
concentrate... The advertisement does not claim nor seek to imply that milk protein
concentrate is the sole contributor to Dylan's recovery, it is merely one part of that equation.
The visual elements of Dylan working out and playing sport give context to this message."

In support of the claims made in the advertisement Fonterra provided information relating the
nutritional benefits of milk protein concentrate in aiding rehabilitation in patients. It said, in
part: "Fonterra does not dispute that the combined efforts of the doctor and the patient are
essential in the repair from serious trauma. However, it is also true that humans have innate
nutritional requirements for essential nutrients, and for patients undergoing surgery or
recovering from a traumatic injury, those nutritional requirements increase - especial y with
respect to protein...The nutrition needs of a patient can be met by a combination of diet and
medical nutrition therapy (which encompasses oral nutritional supplements, enteral tube
feeding and parenteral nutrition). These medical nutrition products typical y contain a source
of protein or specialised free amino acids (typical y parenteral products)... Fonterra
manufactures and sel s a range of protein ingredients from milk including, but not limited to,
total milk protein, whey protein concentrates or hydrolysates, sodium or calcium caseinate,
and milk protein concentrate. These products are used by medical nutrition product
manufacturers to produce medical foods that meet the required nutritional targets."

The Advertiser also explained that "the European Society of Parenteral and Enteral Nutrition
(ESPEN) highlights that patients after major surgical procedures display specific nutritional
chal enges, with a high risk of consequent malnutrition due to their often highly pronounced
stress metabolism." Further, it noted that "experts, including the Ministry of Health,
recommend regular consumption of dairy products such as milk because they contain a
range of important nutrients that are essential for optimal health."
Regarding the Complainant's view the advertisement was insensitive, the Advertiser
responded "Fonterra is not seeking to diminish the role that the patient or doctor (or indeed
any other external contributing factor) play in the process of recovery and rehabilitation from
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serious accidents. Given that this is a Fonterra advertisement, we have natural y chosen to
focus on the role of milk protein concentrate and the part it plays in this recovery process -
but the advertisement does not claim any sort of exclusivity in terms of the causative effect
of this product. It is therefore Fonterra's view that the advertisement aligns with prevailing
standards of decency."

Response from Media, Commercial Approvals Bureau
The Commercial Approvals Bureau afforded the advertisement a G rating (General
Audiences) and said the milk protein concentrate "is definitely used in recovery and
rehabilitation programs, as demonstrated in the commercial itself and verified by medical
professionals who administer nutritive MPC."

Complaints Board Discussion
The Complaints Board noted the concerns of the Complainant and took into account the
responses from the Advertiser and Media.

The Complaints Board considered the likely consumer takeout of the advertisement. It said
the advertisement presented the role milk protein concentrate played in the recovery and
rehabilitation of Dylan Davidson after a serious accident. The Complaints Board noted the
advertisement depicted various stages of Dylan's recovery from the perspective of a dairy
farmer who says, in part

"our milk protein concentrate is an ingredient that is used in medical nutritional
products al around the world. That was the catalyst to bring Dylan back from the
brink. It gives him strength, it gives him muscle mass. You can see it when he's
training. To think that milk from New Zealand is playing a large part in his recovery...
is real y quite humbling for us."

The Complaints Board said the language used in the advertisement clearly referred to milk
powder concentrate playing a part in recovery and acting as a starting point for rehabilitation.

The Complaints Board considered whether the advertisement created a misleading
impression or representation about the benefits of milk powder concentrate in the recovery
from serious il ness or accidents. It said the advertisement highlighted the role that milk
powder concentrate played. It did not imply it was the sole factor but portrayed that it was
part of a programme which showed Dylan in various scenarios and stages of recovery.

The Complaints Board said the representation in the advertisement was supported by the
information provided by the Advertiser that milk powder concentrate, as an ingredient in
specialised medical foods, provides essential nutrition as a part of recovery from serious
accidents and il ness.

The Complaints Board said the advertisement did not create a misleading impression and,
taking into account the information provided by the Advertiser, said it was unlikely to mislead
consumers. The Complaints Board ruled the advertisement was not in breach Principle 2 of
the Code for Advertising Food.

The Complaints Board considered whether the advertisement offended against general y
prevailing community standards. It noted the Complainant's view it was insensitive to
suggest that milk aides in the recovery from a serious accident, however, in its view the
Advertiser had demonstrated that milk powder concentrate did play a role in helping to meet
nutritional requirements. Therefore, while the Complaints Board noted the offence the
advertisement had caused the Complainant, it was of the view there was nothing about the
depiction of Dylan's recovery that was likely to cause serious or widespread offence to most
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people. The Complaints Board ruled the advertisement was not in breach of Rule 4 of the
Code of Ethics.

The Complaints Board concluded the advertisement was not misleading and was unlikely to
cause offence and as such, had been prepared with a high standard of social responsibility
and was not in breach of Principle 1 of the Code for Advertising Food.

Accordingly, the Complaints Board ruled the complaint was Not Upheld.

Decision: Complaint Not Upheld



DESCRIPTION OF ADVERTISEMENT

The television advertisement for Fonterra showed dairy farmers Mark and Deborah talking
about milk powder concentrate and its role as a nutritional supplement in the recovery of
Dylan Davidson from a serious accident. The advertisement showed various aspects of
Dylan's recovery, including physiotherapy and wheelchair sport, and Mark said, in part: "our
milk protein concentrate is an ingredient that is used in medical nutritional products al
around the world. That was the catalyst to bring Dylan back from the brink. It gives him
strength, it gives him muscle mass. You can see it when he's training. To think that milk from
New Zealand is playing a large part in his recovery... is real y quite humbling for us." The
advertisement concludes with the onscreen message: "From here to everywhere. Fonterra."

COMPLAINT FROM M JONASSEN

This ad is insinuating that dairy somehow aids in the recovery and rehabilitation of serious
accidents.
This ad is very insensitive. I know first hand that dairy has nothing to do with it, it is the hard
work of the patient and Doctor.
There is no evidence to support dairy having any healing properties.

CODE OF ETHICS

Rule 4 Decency - Advertisements should not contain anything which clearly offends
against general y prevailing community standards taking into account the context,
medium, audience and product (including services).

CODE FOR ADVERTISING FOOD

Principle 1: Al food advertisements should be prepared with a due sense of social
responsibility to consumers and to society. However food advertisements containing
nutrient, nutrition or health claims*, should observe a high standard of social
responsibility.

Principle 2: Advertisements should not by implication, omission, ambiguity or
exaggerated claim mislead or deceive or be likely to mislead or deceive consumers,
abuse the trust of or exploit the lack of knowledge of consumers, exploit the
superstitious or without justifiable reason play on fear.

RESPONSE FROM ADVERTISER, - FONTERRA GROUP LTD

Ms Jonassen's complaint relates to a Fonterra advertisement for milk protein concentrate. It
is one of a series of commercials from our "From Here to Everywhere" campaign.

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Ms Jonassen states in her complaint that the advertisement is "insinuating that dairy
somehow aids in the recovery and rehabilitation of serious accidents." She claims that the
ad is "very insensitive" noting "I know first-hand that dairy has nothing to do with it, it is the
hard work of the patient and Doctor. There is no evidence to support dairy having any
healing properties".

In the ASA letter regarding this complaint, the relevant sections in the Advertising Codes of
Practice are identified as:

? Code of Ethics - Rule 4
Decency - Advertisements should not contain anything which clearly offends against
general y prevailing community standards taking into account the context, medium, audience
and product (including services).

? Code for Advertising Food - Principle 1
Al food advertisements should be prepared with a due sense of social responsibility to
consumers and to society. However food advertisements containing nutrient, nutrition or
health claims, should observe a high standard of social responsibility.

? Code for Advertising Food - Principle 2
Advertisements should not by implication, omission, ambiguity or exaggerated claim mislead
or deceive or be likely to mislead or deceive consumers, abuse the trust of or exploit the lack
of knowledge of consumers, exploit the superstitious or without justifiable reason play on
fear.

Fonterra's Response

The overarching complaint by Ms Jonassen is that our advertisement implies that dairy aids
in the recovery of serious accidents, that this is untrue (recovery relies on the work of the
doctor and patient), and as a result, the advertisement is insensitive.

Fonterra does not dispute that the combined efforts of the doctor and the patient are
essential in the repair from serious trauma. However, it is also true that humans have innate
nutritional requirements for essential nutrients1, and for patients undergoing surgery or
recovering from a traumatic injury, those nutritional requirements increase - especial y with
respect to protein.

The European Society of Parenteral and Enteral Nutrition (ESPEN) describes Clinical
Nutrition as a branch of Human Nutrition that "encompasses the knowledge and science
about body composition and function during acute and chronic disease"2. ESPEN highlights
that patients after major surgical procedures display specific nutritional chal enges, with a
high risk of consequent malnutrition due to their often highly pronounced stress metabolism.

The nutrition needs of a patient should be assessed as a component of a nutritional
assessment performed by the clinician, with a protein target in the range of 0.8g/kg/day
(similar to the current NZ recommended dietary intake) to 1.5g/kg/day or higher. The
nutrition needs of a patient can be met by a combination of diet and medical nutrition therapy
(which encompasses oral nutritional supplements, enteral tube feeding and parenteral

1 Commonwealth Department of Health and Ageing Australia, Ministry of Health New Zealand & National
Health and Medical Research Council (2006).
Nutrient Reference Values for Australia and New Zealand, including Recommended Dietary Intakes.
National Health and Medical Research Council and the Ministry of Health, Canberra.
2 Cederholm, T., Barazzoni, R., Austin, P., Ballmer, P., Biolo, G., Bischoff, S. C., et al. (2017). ESPEN
guidelines on definitions and terminology of clinical nutrition. Clinical Nutrition, 36(1), 49-64.
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nutrition). These medical nutrition products typical y contain a source of protein or
specialised free amino acids (typical y parenteral products).

Fonterra manufactures and sel s a range of protein ingredients from milk including, but not
limited to, total milk protein, whey protein concentrates or hydrolysates, sodium or calcium
caseinate, and milk protein concentrate. These products are used by medical nutrition
product manufacturers to produce medical foods that meet the required nutritional targets.

Experts, including the Ministry of Health, recommend regular consumption of dairy products
such as milk because they contain a range of important nutrients that are essential for
optimal health. At least two to three serves of milk and milk products are recommended
each day as part of a healthy diet for good health3. Menus for the majority of NZ hospitals
are based upon "choices [which] will maximise the opportunities for patients to consume the
number of serves from each of the four food groups as recommended by the Ministry of
Health"4. This captures at least two services of milk or milk products as a source of protein:



Ministry of health (MOH) Food and Nutrition Guidelines for Healthy Adults: A background
paper 2003 (page 5]

ESPEN provides expert guidelines for Clinical Nutrition in Surgery5, highlighting the
important benefits of providing suitable nutrition in the post-operative and recovery periods.
The guidelines highlight that key aspects of perioperative care include the integration of
nutrition into the overal management of the patient. They also highlight the benefits of early
mobilisation around protein synthesis and muscle function, and include recommendations for
resistance exercise where possible. The guidelines further note that those at nutritional risk
have requirements of between 104-125kJ/kg for energy and 1.5g/kg/day for protein.

Milk protein concentrate is source dairy of protein produced by filtration of fresh skim milk,
and is used in a range of medical nutrition products. Milk protein is used in these products
because it is a high nutritional quality protein6, meaning the protein contains high levels of
bioavailable indispensable amino acids which are required from the diet to meet human
requirements. Milk protein supports muscle mass by the stimulation of muscle protein

3 Ministry of Health, 2015
4 http://www.nzhealthpartnerships.co.nz/wp-content/uploads/2016/02/Food-Services-Agreement.pdf
5 Weimann, A., Braga, M., Carli, F., Higashiguchi, T., H?bner, M., Klek, S., et al. (2017). ESPEN
guideline: Clinical nutrition in surgery. Clinical Nutrition, 36(3), 623-650.
6 Rutherfurd, S. M., Fanning, A. C., Mil er, B. J., & Moughan, P. J. (2015). Protein digestibility-
corrected amino Acid scores and digestible indispensable amino Acid scores differentially describe
protein quality in growing male rats. The Journal of Nutrition, 145(2), 372-9.
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synthesis.7 Consumption of protein, especial y in combination with resistance exercise (as
demonstrated within the advertisement), also helps improve muscle and strength.8 Final y,
milk protein concentrate (~80% protein by weight) also provides approximately 1520kJ/100g
of energy (using the standard factors of 17kJ/g for protein and carbohydrate, and 36kJ/g for
fat). The above ESPEN guideline for clinical nutrition in surgery highlights the additional
benefits of early nutrition support - with a reduction in infectious complications, reduction in
the length of hospital stay and associated reductions in the cost of care.

The advertisement in question shows visuals of Dylan exercising with the farmer voiceover
speaking to the nutritional benefits of the milk protein concentrate (which we have more ful y
outlined and substantiated above). The advertisement does not claim nor seek to imply that
milk protein concentrate is the sole contributor to Dylan's recovery, it is merely one part of
that equation. The visual elements of Dylan working out and playing sport give context to this
message.

Each claim contained within the advertisement is factual, not misleading, and able to be
substantiated. In light of the evidence relating the nutritional benefits of milk protein
concentrate set out above which make the relevant claims in the advertisement true,
Fonterra is confident that in promoting the benefits of this form of dairy ingredient, the
advertisement has:
? been prepared with and observed a high standard of social responsibility;9
? not by implication, omission, ambiguity or exaggerated claim:10
? misled or deceived or been likely to mislead or deceive consumers;
? abused their trust;
? exploited their superstitions;
? exploited their lack of knowledge; or
? played on their fear.

Other claims within the advertisement such as "aiding millions of people around the world"
can be substantiated from our internal customer sales data, the specific details of which are
commercial y sensitive to Fonterra.

Final y, we respectful y submit that the advertisement does not contain anything which
clearly offends against general y prevailing community standards. Fonterra is not seeking to
diminish the role that the patient or doctor (or indeed any other external contributing factor)
play in the process of recovery and rehabilitation from serious accidents. Given that this is a
Fonterra advertisement, we have natural y chosen to focus on the role of milk protein
concentrate and the part it plays in this recovery process - but the advertisement does not
claim any sort of exclusivity in terms of the causative effect of this product. It is therefore
Fonterra's view that the advertisement aligns with prevailing standards of decency and thus
complies with Rule 4 of the Code of Ethics.

Contact person for advertising
Emma Wil is
complaints
Senior Corporate Counsel
Fonterra

7 Mitchell, C. J., Mcgregor, R. A., Souza, R. F. D., Thorstensen, E. B., Markworth, J. F., Fanning, A.
C., ... Cameron-smith, D. (2015). Consumption of Milk Protein or Whey Protein Results in a Similar
Increase in Muscle Protein Synthesis in Middle Aged Men. Nutrients, 7(10), 8685-8699.
8 Cermak, N. M., Res, P. T., de Groot, L. C. P. G. M., Saris, W. H. M., & van Loon, L. J. C. (2012).
Protein supplementation augments the adaptive response of skeletal muscle to resistance-type
exercise training: a meta-analysis. The American Journal of Clinical Nutrition, 96(6), 1454-64. .
9 Code for Advertising Food, Principle 1
10 Code for Advertising Food, Principle 2
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Name and contact at creative agency
Jo McDonald
Group Business Director
Colenso BBDO
Name and contact at media agency
Ashleigh Nicholson
Mediacom
A basic, neutral description of the
An emotional story told through the eyes of a
advertisement
New Zealand farmer. We hear first-hand the
farmer's passion as an owner of Fonterra and we
see that the Co-operative achieves amazing
things through the innovation of milk protein
concentrate - a medical nutritional product used
to aid in the recovery of patients who cannot
feed themselves. In this commercial we reflect
on the case of Dylan Davidson from Toronto.

Date advertisement began
Sunday 10 September 2017
Where the advertisement appeared (al
TV, Bil board
locations e.g. TV, Bil board, Newspaper
Website
Is the advertisement stil accessible -
Housed on Fonterra's You Tube Channel &
where and until when?
Fonterra's website (www.fonterra.com) - no
further paid media
A copy of digital media file(s) of the
https://www.youtube.com/watch?v=GojINsOSEiE
advertisement - if the complaint relates

to on-screen graphic, please send a
broadcast quality version.
Who is the product / brand target
General New Zealand public aged 25-54 years.
audience?

See attached under Schedule 2.
Please provide a copy of the media
schedule.
Pre-vetting Approval number if
N/A
applicable
Clear substantiation on claims that are
Please see Schedule 3 for a response to this
chal enged by the complainant.
complaint and substantiation of the claims made
in the advertisement.


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For Broadcast advertisements:

A copy of the script
60 second script:

[Opening Frame Text]: FROM HERE TO
EVERYWHERE

[MARK]
Dylan's accident was catastrophic to his body.
He was so lucky to survive.

[DYLAN]
Broke seven ribs, al of them punctured my
lungs, broke T3 and 4 in my spinal cord... I had
a head injury...

[DEBORAH]
Dylan was in a coma for two weeks... his body
was wasting away. How do you feed someone
that can't eat or drink?

[MARK]
We're passionate dairy farmers Deborah and I.
Our milk protein concentrate is an ingredient that
is used in medical nutritional products al around
the world... that was a catalyst to bring Dylan
back from the brink. It gives him strength, it
gives him energy, it gives him muscle mass. You
can see it when he's training. To think that milk
from New Zealand is playing a large part in his
recovery, and aiding mil ions of people around
the world is real y quite humbling for us.

[End Frame]: Fonterra FHTE DFL lock up

CAB key number and rating
Key: FOP/060/00284R, G rating, rating
#70817030


RESPONSE FROM MEDIA - CAB

FONTERRA TELEVISION ADVERTISEMENT
COMPLAINT: 17/340
KEY: FON180MPC01

RATING:
G

We have been asked to respond to this complaint under the fol owing codes:
Code of Ethics - Rule 4;
Code for Advertising Food - Principle 1 and 2

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CAB approved this Fonterra commercial on 05/09/17 with a G classification. Under CAB
internal policies, this commercial is not considered food advertising as no food product
appears.

The commercial describes and shows the uses of MPC (milk protein concentrate) in
programs of medical recovery, and includes personal testimony.

A sole complainant has chal enged the idea the MPC has a role in recovery and
rehabilitation.

This complaint is rendered void by the fact that MPC is definitely used in recovery and
rehabilitation programs, as demonstrated in the commercial itself and verified by medical
professionals who administer nutritive MPC.


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