Danone pregnancy leaflets promoting Cow & Gate brand

Updates

Update 31 July 2012: The Department of Health has confirmed that it has no record of Danone requesting permission to distribute the leaflets as required by law and that the law regarding distribution of such materials is fairly clear and should be complied with. 

Update 12 July 2012: Despite Danone's undertaking in June, a fresh batch of leaflets was found in the same facility referred to below and the public continue to report leaflets placed in health centres.

Update 11 June 2012: Danone informed Baby Milk Action: "Danone has recently taken a decision that any materials left within health care facilities will not bear product or brand names, so as to avoid potential allegations of promoting infant formula via this type of activity." Asked to clarify whether this means such leaflets will no longer be distributed, Danone responded on 20 June 2012 (full response below): "This commitment means that materials designed for consumers will no longer be distributed to healthcare facilities." 

Update 25 May 2012: The Advertising Standards Authority has refused to conduct a formal investigtion of the complaint registered. Details below.

Update 30 May 2012: A doctor representing the clinic where the leaflet shown left was on display contacted Baby Milk Action after we brought it to the attention of staff.  The doctor said they were shocked to find the leaflet on its premises and the clinic is conducting an investigation to find out how this occured and to stop it happening again.

Violation details

Health facilities are displaying leaflets that give the appearance they are an officially sanctioned source of information on pregnancy and child care.

An example reported to the Baby Feeding Law Group in March 2012 is in folded DL format, which displays alongside other information leaflets, with the message: "Pregnant? Advice and support at every stage. We're here to answer all your questions".

The freepost return form goes simply to the "Mum & Baby Club, The Communication Centre, Swindon, SN38 1GW".

The leaflet explains "Our Carline team is made up of midwives, pregnancy advisors and experienced mums, supported by nutritionists and healthcare professionals."

It does not clearly state on the front cover or in the opening text that this is an initiative of a baby food company. Danone is aware of the sensitivities of being open about this as it offers to employ midwives for its Carelines "off the books" through a bank agency so that their payslips will not show they are working for Danone (see earlier report by clicking here).

As well as encouraging pregnant women to call the Careline, the leaflet invites them to "Join the Cow & Gate Mum & Baby Club" and offers free gifts as an inducement to do so, including "free pregnancy diary, free cuddly cow, mailings and emails packed full of advice and tailored to your stage, money-off vouchers".

According to the Guidance Notes that accompany the UK law, it is the view of the Food Standards Agency that the prohibition on giving of gifits: "would prohibit such gifts being provided via baby clubs or similar activities."

The placing of the leaflets in health facilities gives the impression that the health service is encouraging pregnant women to join Danone's Cow & Gate branded club.

Cow & Gate is one of Danone's breastmilk substitute brands. The return forms has a tick box for receiving "Information about infant milks" making the leaflet a promotion for the Cow & Gate infant milk range. Pregnant women are also directed to Danone's Cow & Gate website where the full range of formulas are promoted, making this a de facto infant formula advertisement. 

The Infant Formula and Follow-on Formula Regulations 2007 (see The Law section) prohibit the promotion of infant milks:

The law states:

"21.—(1) No person shall advertise infant formula." 

The exceptions in the law do not apply to advertising to the general public. The Guidance Notes that accompany the Regulations state:

"51. the specific terms ‘infant formula’ and ‘follow-on formula’ should be clearly featured on the packaging, in a font size no smaller than the brand name."

Danone ignores this provision. As can be seen from the packshots on the Cow & Gate website, the Cow & Gate name and logo dominates the label. Hence, promotion of the Cow & Gate name promotes the full range of products.

Article 24 of the law relates to the Provision of informational and educational material dealing with the feeding of infants and can be applied to the leaflets placed in health facilities and the information materials being offered free to health service users:

(4) No manufacturer or distributor of an infant formula shall make a donation of any informational or educational equipment or materials except in accordance with the following conditions—

(a) the donation shall be made following a request by the intended recipient;

(b) the donation shall be made with the written authority of the Secretary of State or in accordance with guidelines drawn up by the Secretary of State;

(c) the equipment and materials shall not be marked or labelled with the name of a proprietary brand of infant formula; and

(d) the equipment or materials shall be distributed only through the health care system.

Hence, Danone should be challenged to prove that the leaflets have been produced following a specific request by the health facilities where they appear and with the written authority of the Secretary of State. It is unclear how such approval might have been given as the leaflets have the name and branding of Cow & Gate infant formula. Even the heart symbol on the front of the leaflet is used on the infant formula label.

Seeking direct and indirect contact with pregnant women and mothers as infants and young children as these leaflets are doing is prohibited by Article 5.5 of the International Code, which states: "Marketing personnel, in their business capacity, should not seek direct or indirect contact of any kind with pregnant women or with mothers of infants and young children."

A market research form in the same leaflet rack asks people which leaflets they selected. For relevant leaflets there is also a question "Have you bought or will you buy a product as a result of reading this leaflet?" This question is asked of the Pregnant? leaflet, further demonstrating the purpose of the leaflet is to sell Cow & Gate products to pregnant women, the only relevant product being infant milks.

The leaflets have been reported to the Advertising Standards Authority, Trading Standards, the Department of Health and a complaint made to Danone.

The Department of Health confirmed on 31 July 2012 that it had no record of a request from Danone to distribute the leaflets, as required by Article 24 of the law. It confirmed that no specific guidelines exist, but that the law in this area is fairly clear and businesses should be ensuring compliance.

Response from Danone 20 June 2012.

Trading Standards have informed Danone of the complaint and will respond directly to the complainant. Danone has discussed the proposed action with Trading Standards prior to replying to Baby Milk Action, and TS are aware that we will not be distributing any more of these leaflets. This commitment means that materials designed for consumers will no longer be distributed to healthcare facilities.
 
I wish to clarify that this commitment is for consumer materials only. It doesn't apply to materials for Healthcare Professional, where we will continue to supply data-cards etc, as well as factual and scientific info on new products or product changes. The materials intended for HCP's will not be available in Healthcare Facility waiting rooms, as they are not intended for the general public. Additionally, Danone will ensure all such material, clearly indicates that it is for Healthcare Professional Use Only. 

Response from the Advertising Standards Authority 25 May 2012.

Dear Mr Brady
 
I am sorry for the delay in updating you on this matter.
 
The Investigations department has considered your complaint but has decided that a formal investigation was not warranted.  They concluded that, taking the leaflet as a whole, it would be clear to readers that it was produced by Cow and Gate and that the opportunity to request further information about infant milks did not constitute advertising of infant formulas.  We will therefore not be able to take any further action on your complaint and will close our file.
 
I am sorry that we cannot take this matter any further.  Please do not hesitate to contact us in the future if you come across any other ads that cause you concern.

Although the ASA slogan is 'legal, decent, honest and truthful', in reality it does not conduct a test of the legality of such promotions. It only evaluates them against its own voluntary code.

The leaflets direct pregnant women to a Danone website promoting the full range of Cow & Gate formulas, including infant formula - the Cow & Gate branding dominates labels, although the Guidance Notes to the law say this should be no bigger than the infant formula and follow-on formula text

Danone's promotional leaflet found in health facilities