Advertised recently on television, the Maltesers advert depicted two female friends talking about whether or not the chocolate product was a "naughty" way to enjoy chocolate.
A voiceover at the end of the ad said: "At less than 11 calories each, you'll need new ways to be naughty."
But the UK's Advertising Standards Authority (ASA) upheld a complaint that the words "less than" gave the misleading impression that a Malteser was low in energy.
"This is not a decision that we take lightly, because it is taking away advertising freedom," a spokesperson for the ASA said to ConfectioneryNews.com today.
New rules from Europe (Regulation (EC) No 1924/2006 on nutrition and health claims made on foods) were designed to deter food makers from using misleading nutrition claims on their products. Under the rules, a claim that a food is low in energy may only be made where the product does not contain more than 40 kcal (170KJ)/100g for solids. Maltesers contain 505 calories per 100g.
The ASA, in making its judgement, considered the claim "less than 11 calories each" was likely to suggest to viewers that a Malteser was low in calories, and thus constituted a 'low energy' claim. As a result, the watchdog concluded that as Maltesers contain 505 calories per 100 g, a 'low energy' claim should not have been made.
The ASA does not issue fines, or “go to court" said the ASA spokesperson, but Mars must immediately withdraw the Maltesers advert from the air, taking an indirect hit on costs linked to conceiving, creating and diffusing the ad. The ad can be aired again once it is changed and meets certain standards.
The new rules from Europe on nutrition claims came into force at the end of December 2006. Since this time, the ASA has only been confronted with a handful of complaints regarding misleading claims on confectionery products, a sign that the food industry has for the most part taken the new regulatory constraints on board.
However, earlier this year the ASA did rap the knuckles of Ferrero UK, judging that a TV ad for the firm's hazelnut spread Nutella contained misleading information and nutritional content.
"We considered that the ad misleadingly implied the spread made a more significant nutritional contribution to a balanced breakfast than was the case," the ASA said in its February adjudication.
The ASA investigation followed complaints from UK consumer organisation Which? and 52 viewers on the nature of the advertisement for the hazelnut spread, which stated that Nutella could be eaten as part of a balanced breakfast.
Set up in 1962 to keep an eye on non-broadcast adverts, the remit of the ASA was extended in 2004 to include television and radio advertising.
The catalyst for the judgement on Maltesers, as for all others from the ASA, is a complaint. An ASA investigation follows the complaint, culminating in an executive recommendation to the ASA council. The council, composed of 15 independently appointed lay people, passes the final verdict.
In the Maltesers case, the complaint originated from a UK food safety and standards officer.