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Tiger Brands / PCA / 14545

Ruling of the : ASA Directorate
In the matter between:
Plastics Convertors Association Complainant(s)/Appellant(s)
Tiger Food Brands Intellectual Property Holding Company (Pty) Ltd Tiger Consumer Brands Ltd Respondent

08 Apr 2010

In a ruling dated 25 January 2010, the Directorate held that the claim “biodegradable bag” on the packaging of Tiger Brands’ Albany bread product was unsubstantiated and in breach of Clause 4.1 of Section II.

The Directorate held that the respondent must withdraw these claims and not use them again until new substantiation was submitted and a new ruling issued.

SUBSEQUENT TO THE RULING
The respondents submitted, inter alia, a letter dated 20 January 2010 from Professor Emo Chiellini, Professor of Fundamentals of Chemical Technologies at the University of Pisa, in support of their claim.

The respondents also submitted letters from Mr FY Motala of Tropic Plastic & Packaging Industry (Pty) Ltd, the respondent’s bread bag suppliers, and Mr Michael Stephens of Symphony Plastics Ltd, the supplier of the additive d2w to Tropic Plastic & Packaging Industry (Pty) Ltd.

RELEVANT CLAUSES OF THE CODE OF ADVERTISING PRACTICE
In light of the new substantiation, Clause 4.1 of Section II (Substantiation) was considered relevant.

The Directorate is mindful, however, that although Clause 4.2.1 of Section II (Misleading claims) was not considered previously, the original ruling stated, “…in the event of the Directorate receiving new substantiation, or the matter going on appeal, this clause may well be open for consideration again.”

Should the new substantiation be accepted, the Directorate will be obliged to consider whether Clause 4.2.1 of Section II is contravened.

RESPONSE TO NEW SUBSTANTIATION
In accordance with procedure, the complainant was afforded an opportunity to comment on the independence, credibility and expertise of Professor Chiellini and the two companies.

The complainant submitted that it had no reason to query the credibility and expertise of Professor Emo Chiellini. However, it did question his independence for two reasons:

  • He is a member of the scientific advisory board of Symphony Environmental, and from that the complainant concluded that he derives income from the supplier of the additive; and
  • The Plastics Federation has in the past asked Professor Emo Chiellini for information in an attempt to build up independent information and he chose to ignore their request.

With regard to the two companies, Tropic Plastic & Packaging Industry (Pty) Ltd and Symphony Plastics Ltd, the complainant submitted, inter alia, that they cannot be independent as they generate income from the sale of the product and therefore have a vested interest.

The complainant further submitted a document entitled Position Paper on Oxo-Biodegradables and Other Degradable Additives from the Society of the Plastics Industry (the “SPI”) Bioplastics Council. This document appears to suggest that “Oxo-biodegradable” technology’s claims of being biodegradable are scientifically unsubstantiated.

In addition, the complainant submitted that it has received test results from the UK’s Department for Food, Environment and Rural Affairs (DEFRA) which concluded that the term “biodegradable” is “virtually meaningless”, and that the report recommended that the term “biodegradable” should either be banned from labelling or the type of biodegradability should be defined on labels.

REPLY TO COMPLAINANT’S COMMENTS REGARDING INDEPENDENCE
In order to clarify Professor Chiellini’s position in relation to the respondents and/or their suppliers, the Directorate requested the respondents to obtain Professor Chiellini’s comments on the complainant’s submissions regarding his independence.

In a letter dated 29 March 2010, Professor Chiellini confirmed, inter alia, that he is a professor at a university and that he is “not a member of any Symphony Advisory Board.” He also submitted that he does not recall ignoring any request for information by the complainant.

ASA DIRECTORATE RULING
The ASA Directorate considered the relevant documentation submitted by the respective parties.

Substantiation
Clause 4.1 of Section II states, inter alia, that an advertiser must hold documentary evidence to support all claims that are capable of objective substantiation. In addition, it clarifies that such documentary evidence shall emanate from or be evaluated by an independent and credible expert in the particular field to which the claims relate.

i. Documentary evidence submitted by the complainant

In Samsung LCD / Sony SA / 8000 (15 November 2006), the Directorate noted that “it is for the respondent in a matter to substantiate the claims that it makes, and that the complainant’s data will normally only be taken into account in assessing whether or not they have a basis for complaint. Should a complaint be dismissed, a complainant who holds contradictory data to that of the respondent can opt for arbitration in terms of Clause 16 of the Procedural Guide”.

Accordingly, the Directorate only needs to consider whether the respondent’s evidence substantiates its claims.

ii. Tropic Plastic & Packaging Industry (Pty) Ltd and Symphony Plastics Ltd

In the ruling of 25 January 2010, the Directorate held that Tropic Plastic & Packaging Industry (Pty) Ltd cannot be regarded as an independent party for the purposes of Clause 4.1 of Section II as it supplies the relevant plastic bread bags to the respondents.

The same reasoning applies to Symphony Plastics Ltd, who supplies the additive d2w to Tropic Plastic & Packaging Industry (Pty) Ltd for the purpose of manufacturing the plastic bread bags.

Accordingly, the letters from these companies cannot be accepted, for the purposes of Clause 4.1 of Section II, as independent substantiation for the respondents’ claim.

iii. Professor Emo Chiellini

The respondents submitted a copy of Professor Chiellini’s CV together with his letter of 29 January 2010. From his CV, it appears ex facie that he is a credible expert in the field to which the claims relate. Professor Chiellini’s job title is “Professor of Chemistry – Chemical Fundamentals of Technologies – Faculty of Engineering – University of Pisa”. He has held this position since 1980.

As for his independence, the complainant submitted that he is a member of the scientific advisory board of Symphony Environmental. This appears to be a reference to Symphony Environmental Technologies Plc, of which Symphony Plastics Ltd (the supplier of the additive d2w) is a wholly owned subsidiary. If this were true, Professor Chiellini’s independence may have come into question.

However, given that Professor Chiellini has expressly denied being a member of “any Symphony Advisory Board”, the Directorate is satisfied that he is independent of the respondents and/or their suppliers.

Accordingly, Professor Emo Chiellini is accepted as an independent and credible expert for the purposes of Clause 4.1 of Section II.

iv. Biodegradable bag

In his letter of 29 January 2010, Professor Chiellini states, inter alia, as follows:

“I have evaluated the facts shown by the documentary evidence in this case, together with my own practical and theoretical knowledge of oxo-biodegradable technology, and it is my [o]pinion that:

  • Bags manufactured with the polyethylene used by Tropic Plastic and Packaging Industry (Pty) Ltd to make Albany Bags, using d2w oxo-biodegradable additive, are oxo-biodegradable and will perform in the same way as the oxo-biodegradable materials referred to in the scientific and technical papers already submitted to the Advertising Standards Authority as evidence of the performance [of] oxo-biodegradable technology.
  • The performance of the Albany Bags will not be different in nature to the materials my department has tested in the laboratory and referred to in the additional scientific papers in the attached list.
    3
  • There is no doubt that oxo-biodegradation is a system that will cause biodegradation of polyethylene and that Albany Bakeries’ oxo-biodegradable bread bags made with d2w additive can properly be described as biodegradable.”

In light of this, the Directorate is satisfied that the respondents’ Albany bread bags have been shown to be biodegradable.

The claim “Biodegradable Bag” has accordingly been substantiated and is no longer in breach of Clause 4.1 of Section II.

As noted above, and because the respondents’ new substantiation has been accepted, the Directorate is obliged to consider whether Clause 4.2.1 of Section II has been contravened.

Misleading claims
Clause 4.2.1 of Section II states, inter alia, that advertisements should not contain anything which is likely to mislead the consumer.

In its original complaint, the complainant submitted, inter alia, that the claim “Biodegradable Bag” encourages consumers to believe that the Albany bread bag will degrade whether it is in the open or in a landfill, and that the respondent is being very environmentally responsible. By simply inserting the words “Biodegradable Bag” on the packaging implies that under all or any conditions the bag will degrade. This is not the case.

The Directorate notes that its mandate is to consider whether advertising conforms to the principles of the Code of Advertising Practice, and in doing so, it is trite that the advertising must be considered as a whole.

This means that, in considering the meaning of the claim “Biodegradable Bag” on the Albany bread packaging to the hypothetical reasonable person, the Directorate must consider whether the packaging contains anything which might lend support to the complainant’s contention that the words mean anything other than what is actually stated.

The complainant did not motivate why it believes that the hypothetical reasonable person would understand the claim to have the meaning put forward by it. There does not appear to be anything on the bag to suggest that this is likely. There is also an absence of any evidence to suggest that this meaning will be attributed to the words “Biodegradable Bag”. In addition, there does not seem to be any legal, regulatory or industry requirements for advertisers to explain the term “Biodegradable Bag”.

The packaging simply states “Biodegradable Bag”. This has been substantiated. Accordingly, the Directorate finds that the claim is not likely to mislead the consumer as was suggested by the complainant.

The claim “Biodegradable Bag” on the Albany bread bags is therefore not in breach of Clause 4.2.1 of Section II.

In light of the above, the previous Directorate ruling of 25 January 2010 is no longer binding and the respondents may continue to use the claim “Biodegradable Bag” on its Albany bread bags.

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