Case Report

1 December 2020

In March 2020, Nestlé brought a complaint against Nutricia as to its promotion of its APTAMIL® Pronutra follow-on formula. The complaint related to the inclusion of the wording highlighted in the following excerpt from the APTAMIL® Pronutra datacard

INDICATIONS

Aptamil® Follow On Milk, with a 28% fermented dairy-based blend is specially formulated to help meet the increased nutritional needs of infants from 6 months of age alongside a weaning diet. It contains Omega-3 (DHA) to support normal visual development (benefit obtained from a daily intake of 100mg DHA), a blend of Galacto- and Fructo-oligosaccharides (short chain GOS/long chain FOS in a 9:1 ratio), HMO 3’-Galactosyllactose (3’-GL) produced by our unique process, vitamin D to support the normal function of the immune system and iron to support normal cognitive development.

The complaint had two parts. First, that the reference to 3’GL in the excerpt meant that Nutricia was impliedly claiming that 3’GL by itself had nutritional and/or physiological benefits for infant children who consumed APTAMIL Pronutra follow-on formula. Secondly, it alleged that it gave rise to a false impression that 3’GL is sourced from human milk or is added as a special ingredient which was incorrect. It said that this was contrary to Clause 3.1.2 of the Infant Nutrition Industry Code of Practice (“the INI Code”) which says as follows

“Companies may disseminate specific product information/reference materials to healthcare professionals for their own use; for example, pamphlets, product data cards, posters and booklets. Any information will always be ‘scientific and factual’. Such materials may carry the name of formula foods.”

The second part of the complaint was dismissed by the Director as not meriting any further investigation. The first part of the complaint was considered by the Panel. Nutricia conceded that the datacard impliedly claimed that 3’GL by itself had benefits for the human infant. The issue thus became whether there was “generally accepted scientific data” to support the claim that 3’GL by itself had a beneficial nutritional or physiological effect for the human child.

Having considered the evidence provided by the parties, the Panel found that there was not generally accepted scientific data that 3’GL by itself did have a beneficial nutritional or physiological effect for the infant child. Accordingly, the Panel upheld the first part of the complaint.

Nutricia has agreed to give undertakings (including amending the Aptamil® Pronutra datacard) so as to comply with the above finding.