The Advertising Standards Authority (ASA) - a non statutory body - is being used to usurp the constitutional role of the courts and enforce food law, legal experts have claimed.
Their comments came in the wake of last month's ASA ruling against Müller, which provoked a storm of controversy over the definition of the term 'natural'.
Müller said it had followed 2001 guidance from the government's Food Advisory Committee (FAC) when using the '100% natural ingredients' claim on its Little Stars desserts. But the ASA - citing later guidance from the Food Standards Agency (FSA), said the phrase misled consumers and demanded it be removed from ads.
However, legal experts said the ruling was "more restrictive than the courts have previously felt able to make" and raised "questions as to the legitimacy of the ASA process"
One food law expert said it smacked of "back door enforcement of the worst kind" given that the FSA appeared to be "avoiding the due process of law" by advising a non statutory body (the ASA) in matters for which it (or a local authority) had legal responsibility.
It had also been established both by the FAC and the FSA that raw materials did not automatically lose their 'natural' status through being processed to the extent necessary to make them suitable for consumption. "The ASA appears to have over-ridden long-standing legal precedents relating to the description of concentrated fruit juice and EU statutory requirements for the production of safe gelatine," he added.
The ruling had worrying implications given the number of firms using natural claims on food labels, said Leatherhead Food International chief executive Dr Paul Berryman. "I'd be the last person to endorse false or misleading claims. But it seems to me that the consumer was not being misled in this case, and it doesn't seem right that a bunch of ad executives can sit in a room on a wet Wednesday afternoon and come up with something with such wide ramifications. This is a huge grey area as there is no legal definition of natural except natural flavours."
The ASA said: "We know FSA guidance is not the law, but we made our judgement on the basis of what the average consumer would understand." However, given that it had sold 365M pots over the last two years without a single consumer complaint, there was little evidence that consumers were unhappy, said Müller.