July 22, 2019

July 22, 2019

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‘Unhealthy’ Food Ads Banned Under New ASA Rules in UK

Retailers should continue to monitor the Committee of Advertising Practice Code (CAP Code) governing the advertising of High in Fat, Salt and Sugar (HFSS) products to children. Last year, CAP introduced rules banning the advertising of HFSS products in children’s media and media where children comprise at least 25% of the audience. This includes placing ads within 100m of a primary school, for example. CAP intends to restrict the advertising of products that “most contribute to the problem of childhood obesity”. CAP is reviewing the effectiveness of its rules, considering whether its objective can be better achieved with tougher restrictions, which could include a 9pm watershed on all HFSS advertising. The CAP Code is enforced by the Advertising Standards Authority (ASA). Recent ASA decisions have found that ads featuring a non-HFSS product may still fall foul of the CAP Code if an ad generally promotes a brand who range contains a majority of HFSS products.

CAP Code review

CAP is currently considering feedback from its consultation on the effectiveness of its rules to determine whether its objective of tackling the childhood obesity problem can be better achieved with even tougher restrictions. Such restrictions could go as far as imposing a 9pm watershed on all television advertising of HFSS products. Although the UK government considers such measures a “disproportionate response” to the problem of childhood obesity, it remains to be seen whether the CAP will make rules which were only recently brought into place, even stricter.

The ASA released a number of decisions recently, which demonstrate its tough stance on the advertising of HFSS products to children and its willingness to enforce the current regime.

ASA Ruling on Kelloggs

A TV ad for Coco Pops Granola aired during a programme of the ‘Mr Bean’ cartoon. The Obesity Health Alliance challenged the ad, arguing that it was for a HFSS product and was advertised during programmes where children make up at least 25% of the audience.

The ad focused on Coco Pop’s Granola, which is not a HFSS product. However, the ASA held that the ad did breach rule 32.5.1 of the CAP code because the traditional Coco Pops product (which is HFSS) is “a well-established brand” whilst the Coco the Monkey character is “also well-established as an equity brand character”. As a result, it is likely that the audience would associate the ad with the broader Coco Pops brand and its other products. In conclusion, the ASA found that “the Coco Pops branding was significantly more prominent than the references to the granola product, and that therefore the focus of the ad was on the Coco Pops branding rather than specifically the granola product”.

The impact of the ASA ruling is that the ad cannot be broadcast again in or adjacent to TV programmes commissioned for or likely to appeal to audiences below the age of 16.

ASA Ruling on Kentucky Fried Chicken

A poster ad for KFC’s Mars Krushems drink, featuring a Mars Bar, was displayed on a telephone box near the entrance to a primary school.

KFC conceded that the products in the ad were HFSS products and that it was mistakenly placed within 100 metres of the school.

The ASA considered that general ads for HFSS products in outdoor public spaces are unlikely to breach the CAP Code as children under 16 do not comprise 25% of the UK population. However, where the ad is placed near to a school where children under 16 make up a much higher proportion of the audience, it is highly likely that children under 16 comprise more than 25% of the audience. The ASA therefore considered that the ad breached rule 15.18 of the CAP Code.

The impact of the ASA ruling is that the ad must not be displayed again in close proximity to a school.

ASA Ruling on McDonald’s

An ad for McDonald’s Happy Meals was aired between episodes of Peppa Pig.

The ad featured certain Happy Meal products, including chicken nuggets, a pineapple fruit bag and mineral water. These products are not HFSS products but the ASA considered whether the ad promoted the larger Happy Meal brand, which may as a whole be HFSS. The Happy Meal allows consumers to purchase a combination of three products: a main, side and drink.

The ASA noted that 80% of mains, 100% of sides and 64% of drink options available in Happy Meal deals were non-HFSS products. As such, the ASA concluded that the Happy Meal, overall, is not a HFSS product combination. The ad, therefore, was not an ad for a HFSS product and so it did not breach the CAP code.

Comment

Retailers and brand owners should be aware of these decisions. The ASA will consider an ad in breach of the CAP Code even if the ad does not feature a HFSS product if an ad generally promotes a brand who range contains a majority of HFSS products. In the Coco Pops ruling, the granola product was non-HFSS but at the time the ad was aired, Coco Pops had a portfolio of five products: two of which were non-HFSS and three of which were HFSS. 60% of its products were HFSS products. Other pitfalls were that the overall “Coco Pops” brand dominated the ad; the word “granola” appeared in smaller text next to the brand name, the image of the iconic Coco the Monkey dominated the packaging and the packaging used the same bright yellow colour as other Coco Pops products.

As many brands diversify and focus on healthier, non HFSS sub-brands, a key to complying with the stricter ASA rules is to ensure that ads for non-HFSS products are different in their overall presentation to other HFSS in a range. Another tip is, as McDonalds have done, increase the proportion of non-HFSS products in a range.

Retailers and brand owners should watch this space to follow the results of the CAP’s review of its rules and whether tougher restrictions will be imposed on advertising of HFSS products.

Jake Blakey contributed to this article.

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

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

Carlton Daniel is a partner in our Intellectual Property & 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...

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