There are many steps involved in making sure advertising campaigns are well executed. From a legal perspective, one important consideration is to ensure that all forms of advertising comply with the Advertising Codes of Practice. The Advertising Standards Authority (“ASA”) is an independent, self regulatory body comprised of members of the media and advertising industry. The ASA publishes a set of voluntary Codes of Practice to ensure that any form of advertising is truthful, socially responsible, not misleading or deceptive and otherwise complies with the law. These principles apply both generally and also in relation to specific targeted areas such as the Code for Advertising Food and the Code for Advertising Liquor where the media are seen to have particular influence. In terms of enforcement, the ASA runs a complaints service so that any member of the public can ask for advertisements to be reviewed by the Advertising Standards Complaints Board (“ASCB”) where they consider these to be in breach of the Codes
Most recently, the ASA released the new Children’s Code for Advertising Food (the “Code”). The Code was implemented to provide clear guidance to advertising agencies, marketers and consumers on food and beverage advertising that may have strong appeal to children. It requires advertisers to take special care with this kind of advertising to protect the health and well-being of children. For example, the principles provide that advertisements should not promote inactive or unhealthy lifestyles, mislead about the nutritional value, sugar and fat content of foods or encourage children to consume treat foods in excess consumption.
In particular, Principle 1 of the Code states that “all advertisements should be prepared with and observe a standard of social responsibility.” However, the ASCB has not restricted its interpretation of what constitutes a “high standard of social responsibility” to the stated principles and will take into account generally prevailing community standards as well as previous decisions when interpreting the Code.
There are several such decisions which illustrate how the ASCB may interpret the Code. For example, one decision in 2008 related to a snack food advertisement for Bluebird chips. Bluebird Foods Limited ran a “Rugby Superstars” promotion over a three week period where consumers had to buy specially marked packs of Bluebird chips to collect up to 50 rugby superstar collector cards. The complaint was upheld as the majority considered that the use of the celebrity status of rugby players in a way that would undermine a healthy diet to be a breach of the requirement for a high standard of social responsibility. The advertisement was also considered to encourage excessive consumption due to the number of cards that made up the collector series despite the time period of the promotion. Some aspects of this decision seemed surprising at the time, although it was not appealed and so no further consideration was given.
As part of being socially responsible, it is also recognised that the media should support parents and guardians in helping their children develop healthy eating habits. As such, a complaint was upheld in 2010 in relation to an advertisement for Tip Top Yoghurt ice cream. This showed a younger child being offered a range of options to eat by the adult narrator such as asparagus, broccoli and whole grain toast but the child rejected these foods, only to accept the bowl of Tip Top Yoghurt ice cream. The majority said that this message, which countered healthier food options against a product which contained a level of fat and sugar, did not meet the high standard of social responsibility in the current social environment where child obesity was a significant health issue.
In addition, children’s perception and understanding of the messages contained in advertisements should also be kept in mind. Principle 2 of the Code provides that advertisements should not contain exaggerated claims likely to mislead or deceive children, abuse their trust or exploit their lack of knowledge. In the Tip Top Yoghurt ice cream decision above, it was also held that the advertisement implied that food items such as asparagus, broccoli and whole grain toast had a taste that children would not like, which misled children and exploited their lack of knowledge.
Overall, when designing advertising campaigns for food and beverage products, especially those appealing to children, the following points should be kept in mind:
- Advertisements should be in line with current attitudes towards food and incorporate a due sense of social responsibility;
- Advertisements should not promote inactive or unhealthy lifestyles or inappropriate levels of consumption; and
- Care should be taken when using well-known people or making exaggerated statements/claims.
Although there is no punitive penalty arising from a negative finding by the ASCB, if a complaint is upheld, the advertiser, advertising agency and media are required to voluntarily withdraw the advertisement in accordance with the self-regulatory principles. This can be very costly and the damage to the reputation of the brand or company may also be significant. As compliance is measured by both the principles and the spirit and intention of the Code, this means that decisions can be upheld even where there is no specific breach of the Code. Advertisers should always seek legal advice if they are unsure of their position.
Published in FMCG magazine, March 2011.