COMPLAINT NUMBER 16/296 COMPLAINANT ADVERTISER ADVERTISEMENT T. Swan The Cream The Cream Website and FAQ Factsheet DATE OF MEETING 13 September 2016 OUTCOME Not Upheld in part/ Settled in part SUMMARY The Cream produced a factsheet on its website about its product The Cream, with the heading Frequently Asked Questions. This factsheet was also printed and distributed to customers. The Complainant said the claims about whether The Cream is suitable for vegans, whether animals were harmed in the making of the product and the claim the product had PETA approval were unsubstantiated and likely to mislead. The Complaints Board noted the Advertiser amended their website in March 2015 and the factsheet relating to this complaint had since been replaced. The Complaints Board took into account the old factsheet was still being distributed to customers. The Complaints Board ruled to Not Uphold the complaint in part and to Settle the complaint in part. [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 Basic Principle 4 and Rule 2 of the Advertising Code of Ethics. This required the Complaints Board to consider whether or not the advertisement contained anything which, either directly or by implication, was likely to deceive or mislead the consumer and if it had been prepared with a due sense of social responsibility to consumers and to society. The Complaints Board ruled to Not Uphold the complaint in part and to Settle the complaint in part. The Complaint The Complainant said they were given a copy of the Frequently Asked Questions factsheet from The Cream website on 27 July 2016.
The Complainant said they had concerns about some of the answers provided on the factsheet, particularly in relation to whether the product was suitable for vegans. The Complainant also expressed concerns about whether the product caused harm to animals and whether the company could claim The Cream was PETA approved. The Complaints Board noted the response from The Advertiser that the The Cream FAQ factsheet which was the subject of this complaint was out of date, as it was taken from their old website. The Advertiser will ensure that only the most current FAQ section is to be made available to customers, and this is also available on their website. The Complaints Board s Discussion The Complaints Board considered the complaint and the response from the Advertiser. The Complaints Board noted the factsheet which is the subject of the complaint is out of date and a newer version is now available on the website. The Complaints Board also noted that this older version of the factsheet had been in circulation and agreed it would consider the complaint in regards to this older version. The Complaints Board noted there were two main issues of concern in the complaint; the comments made about whether the product was suitable for vegans and the claim that The Cream is a PETA approved company and that no animals were harmed in the making of the product. The Complaints Board considered each of the Complainant s concerns in turn. Is The Cream suitable for Vegans? The Complaints Board noted that Question 8 of The Cream factsheet said the following: Can I use if I m Vegan/vegetarian? Because we are not eating our skin cream, those with Vegan and Vegetarian belief structures should have no issue using the Cream as no animals are hurt in the process of obtaining it. However, it does come down to personal choice. The Complaints Board agreed that The Advertiser did not make an outright claim that this product is suitable for vegans. The Advertiser said that as no animals are harmed in the process of manufacturing the product then vegans should have no issue using the Cream. The Advertiser, who has made it quite clear that the ingredients of The Cream include animal products, then said that the decision about whether or not to use the product comes down to personal choice. The Complaints Board agreed that the first part of the complaint relating to the answer to Question 8 about whether the product was suitable for vegans, was Not Upheld. The Complaints Board said the comments in the advertisement relating to veganism did not contain anything which was likely to deceive or mislead consumers and, as such, had been prepared with a due sense of social responsibility to consumers and to society. The Complaints Board ruled there was no breach of Basic Principle 4 or Rule 2 of the Code of Ethics in relation to this part of the complaint. 2
Harm to Animals and PETA approval The Complaints Board then turned to consider the second aspect of the complaint, the comments about whether any harm is caused to animals in the making of this product and the claim that the product had PETA approval. The Complaints Board noted that the product is made from colostrum which is the first milk produced by cows after they have given birth. Further information in regards to the complaint is provided in Questions 2, 3 and 28 of the FAQ s, which are as follows: 2. How is it sourced/accessed? The Colostrum we use is sourced from happy, outdoor, grass-fed, New Zealand dairy cows Colostrum is collected under the most stringent and ethical processes, including the ISO9001 standard. And only the over supply of the Colostrum is collected from the Mama cow to use for human health. 3. Is it ethical to take it away from the birthed calf? Under New Zealand collection protocol the newborn calf stays with its Mama for 24 hours and only after that is the surplus Colostrum collected for human consumption 28. Are any animals hurt or exploited in the production of your cream? We are PETA approved and do NOT use any ingredients that have been tested on animals. The Complaints Board discussed the farming methods used on New Zealand dairy farms and the treatment of bobby calves. In its submission the Advertiser made the following comments: New Zealand has long been known as a world leader in healthy dairy practices. We source our Colostrum from the long established and respected Westland Milk Products company. That is the only ingredient we source from New Zealand. We are not a dairy farm nor do we use or have any part in the lives of the thousands of calves born each year. The New Zealand dairy industry found a way to collect the surplus once the calf needs were met and make available for human consumption. The Complaints Board confirmed that it is not its role to decide on the merits of current farming methods and whether farm animals could be said to be exploited. The Complaints board accepted that the statement about outdoor grass fed dairy cows was supported by the approach of the Westland Milk Products company. The Advertiser also provided substantiation for how the colostrum was collected. The Complaints Board ruled this aspect of the complaint was Not Upheld. The Complaints Board then noted that PETA is the abbreviation for the organisation called People for the Ethical Treatment of Animals. According to the PETA website, all companies that use the PETA-Approved Vegan logo must sign PETA s statement of assurance verifying that their product is vegan. The Complaints Board noted the Advertiser s comment that their marketing department had made an error in stating that they were PETA approved, as this has never been the case. The Advertiser said this was noticed and corrected on the website in March 2015. In light of the self-regulatory actions of the Advertiser in amending its website, and taking action to ensure the outdated FAQ document is no longer distributed, the Complaints Board ruled this part of the complaint was Settled. 3
The Complaints Board ruled to Not Uphold the complaint in part and to Settle the complaint in part. DESCRIPTION OF ADVERTISEMENT The website advertisement for The Cream skin cream has a Frequently Asked Questions factsheet, which asks and answers thirty questions about the product. Some of these questions relate to what the product is made of, how it is sourced and whether it is suitable for vegans and vegetarians. COMPLAINT FROM T. SWAN thecream claims to be a 100% natural product made of colostrum, which is suitable for use by vegans, and is ethical, in that no harm has been caused to the animals involved in the main ingredient of this product. The factsheet attached covers the Frequently Asked Questions surrounding the product, and is provided to customers who wish to know more from retailers. This factsheet was presented to me on 27th July 2016, so is still in use. Outcomes sought: 1. Cessation of claims around veganism and a lack of harm to the animals. 2. Clarification as to the veracity of some claims. Veganism and lack of harm thecream makes the following claims on their fact sheet: Can I use if I m Vegan/vegetarian? Because we are not eating our skin cream, those with Vegan and Vegetarian belief structures should have no issue using thecream as no animals are hurt in the process of obtaining it. However, it does come down to a personal choice. Are any animals hurt or exploited in the production of your cream? We are PETA approved and do not use any ingredients that have been tested on animals. On their website, the following claims are made: Can I use if I m Vegan/vegetarian? Yes you can, with the understanding we use Colostrum in our skin care range collected from healthy happy cows. Colostrum is produced by all mammals at birth as a life giving gift of nature. No animals are harmed or mistreated in the collection of this nutrient, however it is a very personal choice and one we respect. Are any animals hurt or exploited in the production of your cream? We do NOT use any ingredients that have been tested on animals. The above claims are misleading and lack a sense of social responsibility. 4
Veganism is a lifestyle that rejects all animal products on ethical grounds, with avoidance of dairy being one of the fundamental aspects of veganism. Veganism derives from a philosophy that humans should not use animals for any purpose. Regardless of the welfare status of the animals, it cannot possibly be claimed that thecream is vegan. In issuing the above statements, thecream creates a clear impression that its product satisfies the requirements of veganism, i.e. that no animals were used during the production of the product. This is clearly absurd. It also lacks a sense of social responsibility. Vegans adopt the lifestyle due to a particular ethic. It is irresponsible to undermine a person s ethical choices with a misleading claim that a product satisfies their ethical criteria. thecream goes on to state no animals are harmed in the process of producing their product. They also ask the question if animals were harmed, and then give an answer that creates the clear impression that animals were not harmed. This is false. The bobby calves that are removed from their mothers are quickly killed. There is no method of killing an animal that results in it not being harmed, it is quite contrary to the definition of harm. Consumers would have no way of knowing that the bobby calves will soon be slaughtered. Clarification on claims made thecream makes the following claims on their factsheet How is it sourced/ accessed? The Colostrum we use is sourced from the happy, outdoor, grass-fed, New Zealand dairy cows. Is it ethical to take it away from a birthed calf? Under New Zealand collection protocol the newborn calf stay with it s Mama for 24 hours and only after that is the surplus Colostrum collected for human consumption. Are any animals hurt or exploited in the production of your cream? We are PETA approved and do not use any ingredients that have been tested on animals. On the website How is it sourced/ accessed? The Colostrum we use is sourced from the happy, outdoor, grass-fed, New Zealand dairy cows. Why? Because this makes the most powerful, most life-giving and contains the highest transfer factor of any Colostrum available. Colostrum is collected under the most stringent and ethical processes. Including the ISO9001 standard. And only the over supply of the Colostrum is collected from the Mama cow to use for human health. Can I use if I m Vegan/vegetarian? Yes you can, with the understanding we use Colostrum in our skin care range collected from healthy happy cows No animals are harmed or mistreated in the collection of this nutrient, however it is a very personal choice and one we respect. These claims must be substantiated, as New Zealand law places the burden of proof upon the advertiser. I request that thecream produce evidence that these claims are true. 5
thecream claims that its produced is sourced from happy, outdoor, grass-fed New Zealand dairy cows. New Zealand has over 600 dairy factory farms (with confinement ranging a few months to 365 days a year). Has thecream taken steps to ensure that they are not inadvertently purchasing from these farms? thecream further claims that the calf stays with its Mama for 24 hours. Some calves are simply killed straight away on farm as a routine practice. Has thecream taken steps to verify that this is not happening with their product chain? thecream claims to be PETA approved. Can they verify this? thecream makes a variety of claims about high welfare standards. What steps do they take to improve welfare beyond the New Zealand norm? Footage was obtained from a random sample of farms, and problems were found on all farms. What steps has thecream taken to ensure that this is not happening with their supply chain? https://www.facebook.com/safenewzealand/videos/10156284624860434/ It is common for advertisers to make assumptions about the state of the New Zealand dairy industry, but without confirming the facts. I request that thecream confirms it has performed its due diligence by having robust substantiation of its claims. CODE OF ETHICS Basic Principle 4: All advertisements should be prepared with a due sense of social responsibility to consumers and to society. Rule 2: Truthful Presentation - Advertisements should not contain any statement or visual presentation or create an overall impression which directly or by implication, omission, ambiguity or exaggerated claim is misleading or deceptive, is likely to deceive or mislead the consumer, makes false and misleading representation, abuses the trust of the consumer or exploits his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as such, is not considered to be misleading). RESPONSE FROM ADVERTISER, THE CREAM I am in receipt of your letter describing a complaint received to your offices. Firstly, I want to say that we certainly have no intention of misleading consumers, we thank you for bringing this to our attention. I have reviewed the documentation submitted by Ms. Swan and my comments are as follows: 1. The pdf document that was attached is a print out of our FAQ section from our old website that I assume was given to Ms. Swan from one of the shops that carry our brand in New Zealand. We are continually changing and updating this section on a regular basis. We have reached out to the marketing director for the shops to ensure that only the most current FAQ section is to be printed and given out, if the customer requests. I want to make clear that this is not our Digital marketing brochure as indicated above. All shops carry a brochure on all of our products, the FAQ section is simply an extra detail that some shops may provide. Always on our website is the most current version. 6
2. The link included in the complaint https://www.thecream.com/faq-the-factspagecat.html?cpath=231187 is our most current FAQ section and has been updated to further clarify the points brought to our attention. 1.5 years ago our marketing department made an error in stating we are PETA approved. This has never been the case. This was immediately found and corrected in March 2015 and this statement is not on our website FAQ section. Questions 8 and 29 in the print out received by Ms. Swan were both amended in March 2015. 3. Ms. Swan feels we have made claims regarding veganism. In our FAQ section the question #8 is asked: Can I use if I'm Vegan/Vegetarian? Our current version reads: "If you so choose, but with the understanding we use Colostrum in our skin care range collected from healthy New Zealand cows. Colostrum is produced by all mammals at birth and is a life giving gift of nature. No animals are harmed or mistreated in the collection of Colostrum a life giving nutrient, however this is a personal choice and one we respect." Ms. Swam feels we are making a claim of being Vegan - no where do we say our products are vegan. We simply explain under a question format, that it is a respected choice but provide further clarification that the formulations contain colostrum from cows. The question also speaks to vegetarians of which many consume 4. Ms. Swan makes further comments that we lack social responsibility regarding vegans and that we are undermining a person's ethical choice. Again we do not make any claim that our products are "vegan" nor do we feel we show any disrespect for that life-style. 5. Ms. Swam makes further claims that animals are harmed in the production of our formula's and makes reference to the killing of bobby calves etc. We have a question # 29 in our FAQ section titled: Are any animals hurt or exploited in the production of your cream? Our answer is: "We do NOT use any ingredients that have been tested on animals nor are any of our completed formulations tested on animals." We use New Zealand colostrum that is explained in our question #2 How is it sourced/accessed? Our answer is: "The Colostrum we use is sourced from healthy, outdoor, grass-fed New Zealand dairy cows. Why? Because this makes the most powerful, most life-giving and contains the highest transfer factor of any Colostrum available. The New Zealand colostrum we use is collected under the most stringent and hygienic processes. Including the International quality standard certifications IS09001, 14001,17025 and FSSC 22000. Only the over supply of the Colostrum collected from the mama cow is used for human consumption". New Zealand has long been known as a world leader in healthy dairy practices. We source our Colostrum from the long established and respected Westland Milk Products company. That is the only ingredient we source from New Zealand. We are not a dairy farm nor do we use or have any part in the lives of the thousands of calves born each year. The New Zealand dairy industry found a way to collect the surplus once the calf needs were met and make available for human consumption. In closing we understand the personal vegan ethic that Ms. Swan has chosen to live by, where any use of an animal product is alarming to her, and appreciate the confusion she may have felt. We do feel that we honor the vegan/vegetarian choice, with the same degree of respect for those that choose to use or consume animal products as well. We are a US company utilizing the valued New Zealand colostrum in the production of a healthy, chemical free skin care choice for women and their families. We have made changes to the FAQ section to further clarify any of the questions and answers in an effort to mitigate any further confusion. 7
If you require any further information, please don't hesitate to contact me at your convenience 8