Restrictions on placement of HFSS product adverts

The CAP and BCAP codes on advertising in non-broadcast and broadcast media respectively, contain rules on marketing directed at children, and on nutritional claims made in food and drink adverts. However, given the concern over child obesity, special rules have also been introduced to protect children in relation to adverts for HFSS food and drink.

HFSS products are "those food or soft drink products that are assessed as High in Fat, Salt or Sugar in accordance with the Department of Health nutrient profiling model".

Non-broadcast media

In non-broadcast media, rules prevent HFSS products from:

• appearing in media specifically directed at anyone under 16, or
• where under-16s make up more than 25% of the audience.

For more information on targeting non-broadcast age-restricted ads, see here.

This covers ads which directly promote or have the effect of promoting HFSS products.  It does not include packaging or point of sale materials as there are separate rules coming in around physical and online product placing (see here for more), but it might include pictures of such packaging or point of sale materials where these are not used incidentally.

Even if the ad does not feature an actual HFSS product, it could still be treated as promoting that product if it features the branding of an HFSS product.  So a poster of a logo associated with HFSS products would produce a similar effect as a poster featuring the product itself. Branding is treated in the widest possible sense and can include logos, marks, characters, colours or straplines directly associated with a particular product, range of products or company.

Where branding synonymous with a range of products is featured, the ad is likely to be treated as an ad for HFSS products if the range of products are mainly (more than 50%) HFSS or if range branding is equally synonymous with an original HFSS product.  If a brand can demonstrate it is synonymous with a non-HFSS identity, in whole or for the most part, its branding may not be treated as promoting HFSS if it is used without direct reference to the HFSS product.

The ASA (which enforces the CAP Code) is likely to take into account a range of factors including the company's provision of non-HFSS products, provision of non-HFSS food and drink products or association with significant initiatives relating to education, sport and, community.  If the brand falls a little short of being synonymous with a non-HFSS identity, the restrictions are less likely to apply if the theme of the ad relates exclusively to social responsibility, good causes and similar.

Ads featuring a generic product which can't be identified as HFSS will be treated as an ad for an HFSS product if the range of products the ad relates to is mainly HFSS.   However, an ad which makes only an incidental reference to HFSS products (for example by featuring a supermarket shelf in the background), is unlikely to be restricted.

Advertisers must take particular care with ads likely to be seen to directly target primary school children (under-12s), whenever they appear.  These should never contain promotions, celebrities or licensed characters that are popular with children.

Broadcast media

Like the CAP Code, the BCAP Code contains a number of general provisions on the content of food adverts, particularly when they are directed at children.  General rules around directing advertising to children are found in section 5, and food-related rules are in 13 (and 12 when related to dieting).  These rules focus largely on content.  In terms of placement, while broadcasters are required to exercise judgment when placing adverts, there are currently no placement restrictions specific to broadcast media.  This is about to change.

Incoming rules on advertising HFSS on TV and online

In 2019, and 2020, the government ran consultations on implementing a 9pm watershed on TV for HFSS advertising, and on introducing a total ban on HFSS advertising online.  Responses to the consultation were overwhelmingly in favour of the proposals.  As a result, the government announced it would bring in:

• a 9pm TV watershed for HFSS products. This will cover all on-demand programme services (ODPS) under UK jurisdiction and regulated by Ofcom, and
• a restriction on HFSS paid-for advertising online to include non-UK regulated ODPS, but excluding 'owned media'.

When will the new rules come in?

The government intends to bring the restrictions in by the end of 2022, using the Health and Care Bill to legislate for the changes.

Which products are in scope?

Products in scope are those of most concern to childhood obesity.  They are currently listed in Annex 1 of the consultation response in conjunction with the 2004-5 Nutrient Profile Model, but will be set out in secondary legislation.

What is 'owned media'?

Owned media is excluded from the incoming restrictions to ensure that brands are able to talk about their products in the spaces they own.  Owned media is "any online property owned and controlled, usually by a brand.  For owned media, the brand exerts full editorial control and ownership over content; such as a blog, website or social media channels".

Exemptions

The government plans a number of exemptions from the new restrictions:

• brand advertising provided there are no identifiable HFSS products in the adverts. This is to ensure brands are not pigeonholed as synonymous with HFSS products and have the freedom to move to healthier offerings
• SMEs
• audio content only available online (podcasts, online radio)
• broadcast radio
• online business to business promotions or advertising
• online transactional content.

Who is liable for a breach of the rules?

• Broadcasters and ODPS under jurisdiction will be liable for breaches of the TV watershed.
• Advertisers will be liable for breaches of the paid-for online advertising restriction.
• For non-UK ODPS, the advertiser will be liable for breaches of the online HFSS restriction.

Online platforms do not have responsibility for ads that breach online restrictions alongside the advertisers.  Their role in the online advertising ecosystem is being dealt with separately – for example, in the Online Safety Bill and new rules for video service providers (see more here).

Enforcement

Ofcom will be the statutory regulator and will appoint a day-to-day regulator (probably the ASA) to carry out frontline regulation.The frontline regulator will use informal powers like reputational sanctions (naming and shaming), and takedown orders but will have the option to refer persistent non-compliance to Ofcom.

More to consider

There is far more to consider when advertising to children than placement and targeting.  Advertisers need to ensure they understand all relevant CAP and/or BCAP restrictions, applicable sector or medium-specific rules, and relevant legislation, for example the Consumer Protection from Unfair Commercial Practices Regulations 2008.  Online safety, and particularly children's online safety, are firmly under the legislative and regulatory spotlight so advertisers need to make sure they stay on top of incoming rules.