Following the introduction of new restrictions on HFSS advertising in non-broadcast media, there’s been a flurry of adjudications connected to the advertisement of food and soft drinks to children, catching out many of the big brands.
Pursuant to the updated UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the Code), HFSS products (high in fat, salt or sugar) must not be directed at under-16s through the selection of media or the context in which they appear, and no medium with an audience that consists of more than 25% of under-16s must be used.
In the months following the new rules, one of the first trends to emerge has been the increase in complaints around inappropriate advertising placement and whether an ad’s audience exceeds the 25% rule, as highlighted by the following ‘fast food’ examples:
Kentucky Fried Chicken (KFC)
A poster for KFC’s Mars Krushems drink was displayed on a phone box a short distance from a primary school – despite advertisements for HFSS products in outdoor public spaces generally being compliant, as children under 16 comprise less than 25% of the UK population, due to its proximity to a primary school in this instance under-16s made up a much higher proportion of the ads audience, leading to a breach of the Code.
Burger King Ltd
As with KFC, a poster ad for Burger King’s Whopper Jr meal deal was displayed on a bus stop within 96 metres from a school. The standard approach taken by the outdoor advertising industry is not to place ads for HFSS products within 100 metres of a school during term time and, therefore, again this was considered too close and in breach.
McDonald’s Restaurants Ltd
On the flip side, an ad for McDonald’s on the back of a bus ticket was subject to a complaint, to which McDonald’s responded with the Department of Transport’s statistics to show that 5-16 year olds accounted for only 15% of journeys across the UK. The Advertising Standards Authority (ASA) found that the proportion of children in the ads audience (i.e. the 261 bus route) was highest during school term-time but many of those children used bus passes and overall around 12% of all passengers in the ad’s audience would be under 16, which did not breach the Code.
Subway Realty Ltd
Likewise, Subway kept on the right side of the line with its poster ad for Subway’s ‘Sub of the Day’ displayed on a phone box close to a children’s centre. Although six of the seven sandwiches featured were non-HFSS, the inclusion of the Mega Melt sandwich meant the poster was a HFSS product ad for the purposes of the Code. However, in general, children’s centres are attended by a smaller number of children than primary or secondary schools and, therefore, it was found that the audience for the ad was unlikely to be significantly skewed towards under-16s.
The marked increase in adjudications demonstrates how easy it is to slip up quite literally by a matter of metres, and there are additional government proposals afoot that could see more products classified as HFSS and falling within the scope of these regulations.
Accordingly, in this current climate, where there’s a spotlight on child obesity, advertising food to children is an area of significant public concern and debate, and a number of consumer bodies are proactively monitoring ads. It is clear that marketers need to be very forensic in their approach to ad placement to avoid the negative PR associated with an adverse ASA ruling.
This article is from the autumn 2019 issue of Food for Thought, our newsletter for those working within the food and drink industries. The content of this article is for general information only. For further information please contact Nellie Jackson or a member of Birketts’ Intellectual Property team. To download the latest issue, please visit the newsletter section of our website. Law covered as at autumn 2019.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at September 2019.