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Online Adverts Promoting Unhealthy Foods to Kids Banned in United Kingdom

From 1 July 2017, non-broadcast adverts for high fat, salt or sugar (HFSS) foods aimed at children will be banned in the UK. The ban is a response to concern about the escalating problem of childhood obesity. Current estimates are that a third of children in the UK are obese.

The ban will be introduced by an amendment to the CAP Code. From 1 July, adverts that directly or indirectly promote a HFSS product will not be allowed to appear in any non-broadcast children’s media.  This covers magazines, cinema, websites, video-sharing sites, advergames and social media platforms explicitly directed at, or with content strongly oriented towards, children under the age of 16.

A similar ban on HFSS adverts is already in place for broadcast advertising, including television adverts. The extension of the ban to the non-broadcast environment is an attempt to track with the changing media habits of children.  Research by OFCOM found that children aged 5-15 years spend around 15 hours each week online, now significantly exceeding the time spent watching television.

The ban extends beyond media specifically aimed at children. HFSS adverts will also be banned in non-broadcast media which is not specifically targeted at under 16s but where children make up more than 25% of the audience.  In addition, to minimise the appeal of permitted HFSS adverts (those appearing in non-broadcast media primarily aimed at adults), advertisers will not be allowed to use promotions, licensed characters (a Disney Princess, for example) or any celebrities popular with children.

The ban creates some tricky areas for advertisers to negotiate. For example, what will amount to an indirect promotion of an HFSS product?  Also, which HFSS foods fall within the ban?  The Committee of Advertising Practice (CAP) has said that the Department of Health nutrient profiling model should be used to classify which products are HFSS. This will require advertisers to make a careful assessment of the nutritional composition of food products to avoid falling foul of the ban, particularly where the product is right on the line between permitted and banned.

Potentially more difficult is assessing when children make up more than 25% of the audience for non-broadcast media which is not necessarily targeted at them. What audience data should be used?  CAP has said that there is no one method. Advertisers may use industry standard audience measurement data or their own data.  But whatever data is used, CAP expects advertisers to make a case that they have targeted their adverts responsibly and complied with the rules.  CAP advocates a cautionary approach – if in doubt about the audience, don’t place the HFSS advert there.

CAP expects the new rules to lead to a major reduction in the number of adverts for HFSS foods being seen by children. This change in advertising practice runs in parallel with initiatives outside the advertising world, such as the requirement for a nutrition declaration on most pre-packed food, introduced in December 2016. CAP will produce guidance for advertisers on working within the new rules.  This guidance is expected in the very near future.

Note that the data on childhood obesity and the time spent by children online was provided by CAP.  More information is available here.

© Copyright 2017 Squire Patton Boggs (US) LLP

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About this Author

Professional Support Lawyer

Gillian Dennis is a professional support lawyer. Gillian is a qualified solicitor and practised for six years at two major law firms. Her particular specialism was intellectual property law. In 2003, she joined the College of Law as a senior lecturer with responsibility for designing and delivering commercial and intellectual property training courses for a number of city law firms.

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Carlton Daniel, intellectual property and technology lawyer, London law firm, Squire Patton Boggs
Partner

Carlton Daniel is a partner in our intellectual property and technology team based in our London office. His practice incorporates the full range of specialist advice in the advertising, marketing and media sectors and he handles both contentious and non-contentious matters. His practice ranges from advising on intellectual property rights (including trade marks, designs, copyright and confidential information) to commercial contracts, licensing, brand endorsement, sponsorship, product placement, privacy, defamation, confidentiality, data compliance and advertising clearance.

As part of his specialist offering to the marketing services sector, Carlton's expertise encompasses advice on agency appointments, media buying, digital campaigns (e.g. issues involving social media/user generated content, email and viral marketing), gambling law advice for marketing with competitions, sweepstakes and prize draws, dealing with the courts and other advertising/consumer protection regulators such as local trading standards services, the Advertising Standards Authority, the Information Commission's Office and Ofcom. Carlton also deals regularly with the OFT in relation to regulatory matters.

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Nicole Smith, SquirePattonBoggs, Consumer Regulation, Food Law, Licensing
Senior Associate

Nicola Smith specialises in hospitality and leisure. Her expertise covers both licensing and food law. Nicola acts for a wide range of clients from listed companies to entrepreneurs. She prides herself on providing commercially-minded advice as part of a one-stop shop for clients dealing with the management of all of their licensing and food law issues.

In addition to direct advice on licensing and food issues, Nicola provides support on corporate, property and insolvency transactions and advises on the licences required for the playing of...

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