A veterinarian and dairy farm owner who took the matter on legal appeal after the Advertising Regulatory Board dismissed his complaint against Woolworths has lost again.
Veterinary livestock consultant and author Dr Tod Collins initially complained that Woolworth's milk adverts claiming that they sold only “rBST hormone-free milk” was misleading and could potentially cause unnecessary public fear.
He took the matter on appeal after the Advertising Regulatory Board dismissed his complaint, finding that Woolworths had successfully responded through their lawyers and had shown that their advertised claims were true, applied only to their own milk and therefore did not violate any advertising standards.
“It would appear to us that the nub of the complaint is less about Woolworths and more about the general perception among consumers and the public about recombinant bovine somatotropin (rBST), as well as the implications for the dairy industry. That is not within the mandate of this body to resolve,” said the Advertising Appeals Committee, chaired by Nasreen Rajab-Budlender SC.
The committee was convened to consider the appeal lodged by Collins, who owns a dairy farm that uses rBST hormones.
He told the committee that he has informally studied and researched rBST use and its effects for many years. He had therefore laid a formal complaint against Woolworths’ milk adverts that carry the words, “When only rBST hormone-free will do. Tested and audited, so you know what’s in your milk.”
Though Woolworths is not a member of the ARB, it opted to participate in the proceedings. To substantiate its response, the retail giant submitted confidential information relating to its testing facility and method. The committee did not make the information public, nor did it share this with Collins, opting to supply him with a summary that did not compromise the trade or other interests of Woolworths.
Collins argued that the use of the word ‘hormone’ does not alert the public that there are safe protein hormones such as rBST, which are unlike steroid hormones that can potentially be dangerous. Collins alleged this was blatant misleading of the consumer.
He said Woolworths’ claims that its milk is tested and audited cannot be substantiated because rBST does not enter the milk and that their claims imply that opposition milk contains rBST.
He described the advertisement as a ‘hoax’ that was misleading and scaring consumers to avoid non-Woolworths milk.
The relevant provisions of the Code of Advertising Practice state that “advertisements should not be so framed as to abuse the trust of the consumer or exploit their lack of experience, knowledge or credulity” and shouldn’t, without justifiable reason, play on fear.
We have considered all arguments and evidence raised. During the hearing of the appeal, Woolworths restated its position contained in its submissions
— Appeals committee
Woolworths, through its attorneys, said it recognised that cows naturally produce a protein hormone called bovine somatotropin (BST) which regulates their milk production and is present in all milk.
However, it explained, recombinant bovine somatotropin (rBST) is a genetically engineered version of BST that is injected into dairy cows to increase milk production. It pointed out that though rBST usage is legal in South Africa and 19 other countries in the world, including the US , Mexico and Brazil, it has never been approved by the EU and several other countries.
Woolworths said while it did not hold a view on milk from cows treated with rBST or the impact on the animals, it felt that many of its customers do have views on the issue. It was because of customer concerns and related animal welfare considerations that it sought to meet this demand for rBST-free milk.
In 2006 Woolworths took the decision to sell only rBST hormone-free fresh milk and yoghurt and required that all its suppliers agree contractually not to use rBST and to be regulated by a third-party auditor. The auditor conducts regular unannounced audit checks of each farm.
When testing for rBST presence in milk was not available in South Africa, Woolworths removed the claim from its milk. However, since 2017, Woolworths has been able to accurately test milk for the presence of rBST.
It submitted that the claim that its milk is tested and audited is, therefore, factually correct and substantiated.
It argued that by providing rBST-free milk, Woolworths met customer demand rather than responding to a health or other concern. It does not claim that milk containing rBST is harmful.
Woolworths argued that its advertising does not abuse the public’s trust, nor is it dishonest or misleading. It stands by its assertion that rBST does enter milk, and its presence can be detected.
It was asserted that the claim “when only rBST-hormone free will do” was not the same as saying “only rBST-hormone free will do” and that it was not comparing its milk to that of competitors.
Woolworths said it believed in providing enough product information for customers to make informed choices and pointed out that it is not the only retailer marketing rBST hormone-free milk.
The committee decided not to uphold Collins’ appeal against the decision that Woolworths’ advertising was not untrue, misleading or scaremongering.
“We have considered all arguments and evidence raised. During the hearing of the appeal, Woolworths restated its position contained in its submissions,” the appeals committee said.
“Dr Collins, in his appeal submissions, appeared to change his position somewhat. In his presentation to the committee, he indicated that he questioned the accuracy of the testing done by Woolworths and that consumers are not aware that rBST is not harmful. It seemed that Dr Collins' concern was that consumers wanted rBST hormone-free milk and that this impacts the dairy industry.
“In addition, Dr Collins referred extensively in his presentation to anecdotal evidence that rBST hormone is not harmful and is necessary to respond to the growing food needs of the world. A significant part of his concern appeared to be that farmers who used rBST were precluded from selling to Woolworths,” said the committee.
It pointed out that its mandate is limited only to advertising infractions and not the broader considerations of milk.
The committee found that Woolworths was therefore not guilty of making misleading claims and that it had adequately proven that its milk is rBST-hormone free and that it is tested and audited.
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