CLOSE-UP: LIVE ISSUE/RIBENA TOOTHKIND - High Court ToothKind ruling prompts soul searching. The war of words rages on as Glaxo SmithKline and the ASA restate their cases

Mr Justice Hunt's decision last week to uphold the Advertising Standards Authority's ruling against Ribena ToothKind will have been greeted with a mixture of euphoria and relief at the ASA's London headquarters.

Mr Justice Hunt's decision last week to uphold the Advertising Standards Authority's ruling against Ribena ToothKind will have been greeted with a mixture of euphoria and relief at the ASA's London headquarters.

Major companies rarely resort to the courts to challenge an ASA verdict. The fact that Glaxo SmithKline did so indicates that the issues at stake go far beyond the 1998 trade press ads claiming that Ribena ToothKind 'does not encourage tooth decay' that the ASA originally ruled against.

The ASA can only operate with the consent, approval and confidence of advertisers, agencies and media owners. Had it lost, its ability to make credible decisions and the impartiality of its expert advisors would have been seriously questioned. Furthermore, there's little doubt that a High Court defeat would have encouraged legal actions by other advertisers, each one costing the ASA thousands of pounds to defend.

Victory for the watchdog may have wide-ranging implications. It effectively sets higher standards for the scientific evidence required to substantiate health claims in advertising. From now on, it will be much more difficult for companies to cherry-pick research results that happen to support their product.

But has the ruling enhanced the ASA's credibility as the defender against unsubstantiated advertising claims? Or has it dealt a blow to advertising freedom by upholding a decision that was, in itself, flawed? Judge for yourself as the adversaries make their cases.



Christopher Graham is the ASA's director-general.

The High Court's verdict has vindicated the ASA's investigation and our council's adjudication on the advertising for Ribena ToothKind.

The final result of the legal challenge, through a judicial review, was to give our procedures and processes a clean bill of health. We have nothing to fear from such a challenge and nothing to hide. Our successful defence affirmed our independence and readiness to take on any advertiser, however powerful, that questions our integrity and the way we conduct ourselves.

It is worth pointing out at this point that the ASA takes no position whatsoever on the merits of Ribena ToothKind as a product, nor on those of any other product, service or cause. That is not the purpose of the organisation and was not the purpose of the original Ribena Toothkind ruling.

We have successfully fought off 12 judicial reviews out of 13 applications - and we have not lost one since the very first case in 1989. We have been successful in the High Court twice in the past two months. But we'd much prefer to sort out advertising claims in advance through CAP Copy Advice. It's a free and fast service. M'Learned Friends are not.

That said, no system is ever perfect and the ASA is working hard to speed up its own processes, while maintaining a consistently high standard of complaint investigation. We now publish our adjudications weekly on our updated website and we publish standards of service to make ourselves more open and accountable.

Last week's judgment was formed on the basis of a protracted and thorough investigation into the claims made in SmithKline's advertising, and followed an earlier unsuccessful appeal by SmithKline to the Independent Reviewer of ASA Adjudications. A key element was the claim that 'Ribena ToothKind does not encourage tooth decay'. The ASA Council found that, as an absolute claim rather than a comparative one, this was misleading - and Mr Justice Hunt agreed, stating that we were not only right but 'duty bound' to arrive at the decision, based on the evidence before us.

Looking beyond the confines of court number ten, the case has wider significance for the self-regulation of non-broadcast advertising. It is the second time within a few weeks that advertisers have claimed the support of human rights legislation in trying to overturn ASA decisions. One plank of SmithKline's case was that we had unnecessarily restricted free speech. The judge rejected this, stating that the British Codes of Advertising and Sales Promotion were 'entirely consistent' with Article 10 of the European Convention for the Protection of Human Rights. The codes do not impose a blanket ban, but state that claims made for any product must be substantiated. Other advertisers would be wise to take note of this.

While this judgment follows last month's praise for the ASA and the self-regulatory system of non-broadcast advertising in the Government's Communications White Paper, such wholehearted support can never be taken for granted. For the system to continue to work, it needs the consistent backing of the advertising industry, taking the rough with the smooth. This is not about support for the ASA as an organisation, but the credibility of advertising self-regulation with those that matter most in this context - consumers and their representatives.

The ASA will continue to work to strike a balance between commercial freedom of expression and consumer protection, conducting ourselves in a way that is firm and fair to all sides. That's an absolute claim we can substantiate. And it's good to have the unbiased expert opinion of the High Court as validation.



Graham Neale is the head of Glaxo SmithKline Nutritional Healthcare.

When the Government put out a call in 1994 for manufacturers to develop food products that are better for teeth, SmithKline Beecham (as we then were) responded. The result is Ribena ToothKind - the first soft drink proven to be kind to teeth.

The development of such a drink is not a rush job. It took us four years to conduct the research needed to find the formula that makes Ribena 'tooth kind'. We knew then that this drink would attract a lot of attention - indeed, we hoped it would. However, we never imagined the flood of ill-informed and unfounded criticism that it has been subjected to since its 1998 launch.

Investment in Ribena ToothKind does not stop with the many millions of pounds that we put behind the product. Experts in different fields have dedicated significant parts of their careers to the development of the product.

This is one important reason why we have to defend Ribena ToothKind. Their work has been attacked publicly and their professionalism called into question, quite unjustifiably.

Before the launch of Ribena ToothKind, the British Dental Association (BDA) considered more than 800 pages of evidence and then awarded Ribena ToothKind BDA accreditation, making it the first and only soft drink to carry the badge of the BDA. We felt that submitting our research to independent scrutiny by the professional body that represents around 15,000 family dentists across the UK was the best way to convince consumers that our claim was legitimate.

Having gone to these lengths we are, naturally, very disappointed with the judge's decision on 17 January. But this ruling does not change the fact that Ribena ToothKind is the only soft drink scientifically proven to be kind to teeth and is recognised by many dentists as the best alternative to milk and water.

Coincidentally, in the past fortnight the BDA reaccredited Ribena ToothKind for another three years after a thorough review of the scientific data. They continue to be convinced that the product breaks new ground for soft drinks and is one that dentists can recommend with confidence.

With this ongoing and independent backing, I am convinced that Ribena ToothKind will continue to thrive as a brand. The real loser in all this controversy is likely to be the consumer. Companies without Glaxo SmithKline's commitment to developing science-driven consumer products will think twice before attempting to address genuine health problems in society. If making a legitimate claim - even when backed by the most authoritative opinion available - results in criticism and condemnation, then innovation is likely to be the first casualty.

Our hope is that the advent of organisations such as the Food Standards Agency and the Joint Health Claims Initiative will help to clear up some of the confusion surrounding food and drink marketing, benefiting manufacturers and consumers alike.

Let's not lose sight of the fact that around half of all five-year-old children in this country suffer from some form of tooth erosion. That is one of the reasons we embarked on the development of Ribena ToothKind seven years ago. We hope that other manufacturers feel able to follow us, despite this case.



Become a member of Campaign from just £46 a quarter

Get the very latest news and insight from Campaign with unrestricted access to campaignlive.co.uk ,plus get exclusive discounts to Campaign events

Become a member

Looking for a new job?

Get the latest creative jobs in advertising, media, marketing and digital delivered directly to your inbox each day.

Create an Alert Now

Partner content