The British High Court has rejected a legal challenge against an Advertising Standards Authority (ASA) ruling, which criticised claims that a children’s soft fruit drink ‘did not cause tooth decay’.

Pharmaceuticals giant GlaxoSmithKline (GSK) lost the high court case over advertising claims for its soft drink, Ribena Toothkind. The company sought a judicial review on an ASA ruling upholding complaints that claims on the drink were misleading.

Mr Justice Hunt ruled that ASA had material before it, including reports from doctors, which entitled it to take the view it did. In his judgement, Justice Hunt said any advert was misleading if it made a false claim that could encourage people reading it to buy the product. He added that the claim the drink did not encourage tooth decay was an “absolute” one which could not be justified.

“All the evidence now before me is to the effect that Ribena ToothKind does not indeed produce the potential for tooth decay to any significant degree,” said the judge. He added that even the company’s own expert evidence did not justify the absolute nature of the claim made.

The ASA decision to withdraw its approval of advertising involving the health claims made by the GSK was prompted by complaints from pressure group, Action and Information on Sugar. The ASA carried out a two-year investigation before its ruling on the advertising claim last July. The ASA asked the advertisers not to repeat a poster advertisement showing Ribena Tooth Kind bottles as bristles on a toothbrush, because without a qualifying statement it implied that the product actively benefited oral health. The ASA also claim that Ribena Tooth Kind is simply less harmful than other sugary drinks, rather than not harmful at all.

GSK, however, claim that the judge’s decision did not look at the science behind the product, only at how the ASA reached its decision regarding wording used in a Ribena ToothKind advertisement. The soft drink contains a special formula with added calcium that counters the impact of fruit acids on the teeth and minimises erosion, 1,200 pages of scientific data supports the GSK claim.

Graham Neale, head of GSK’s nutritional healthcare business, said: “We are very proud of Ribena ToothKind, and will continue to defend it against unfounded criticism.”

The British Dental Association, which states Ribena ToothKind does not encourage tooth decay and minimises erosion, said it would stand by its decision to accredit the soft drink as a product that could help improve children’s oral health. The accreditation of the product had been renewed after a three-yearly scientific review. 

The ASA’s director general, Christopher Graham said: “”I am delighted that the court has upheld our adjudication. The ASA has been vindicated and this judgement acknowledges that we conduct ourselves in a thorough and professional manner.”

As more functional foods come on to the market, the ruling is a warning against unsubstantiated health claims that food and drink manufacturers can make for their products.