The government had already announced that it intended to ban all advertising of products that are high in fat, sugar or salt ('HFSS') on TV and online before 9pm by 2022. Now it has gone further and announced a consultation on extending this ban online to all HFSS products irrespective of whether it is targeted at children or adults raising lots of practical questions and difficulties for advertising a wide range of products.
What are HFSS foods?
Products caught are any foods which are rated "high in fat, sugar or salt" by the Department of Health and Social Care nutrient profiling model. The phrase conjures up an image of chips, crisps and confectionery, but the classification catches a much wider range of products which are not stereotypical "junk food" such as almonds, hummus, cheese and some meats.
What are the current rules online?
Under the existing Advertising Code enforced by the Advertising Standards Authority (ASA), ads for HFSS products 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 should be used to advertise HFSS products. Since this rule was implemented in 2017, the ASA has monitored advertising online using child avatars. The last monitoring exercise in 2019 did not identify any clear evidence of HFSS advertisers actively targeting child profile avatars. The monitoring exercise report shows that 2.3% of all ads served to child avatars were for HFSS products, and that more than two thirds of those ads were for "products likely to be of little interest to children e.g. supermarkets, high-end cheese, condiments". The latest government consultation acknowledges that it's not possible to take into account the full effect of advertising restrictions around advertising HFSS products to children.
What are the proposed rules?
The government is proposing to ban any online ads, displayed at any time, for any products classed as HFSS. The key question here is what is meant by an "ad", or rather what is meant by all "online marketing communications that are either intended or likely to come to the attention of UK consumers and which have the effect of promoting identifiable HFSS products". The ban would exclude "factual claims" and the consultation provides a list of what the government considers to be a "factual claim" – these include price statements, product ingredients, or information regarding sales performance of the products. It's not clear whether this "factual" exclusion would only apply for the purposes of the HFSS ban and if the ASA would still investigate complaints about pricing claims (or "best-selling" claims) in the usual way. The scope of the ban would not cover platforms whose principal function is the buying or selling of products, including food and drink (such as a retailer's online website). It also wouldn't cover direct marketing communications to consumers who have opted-in, including social media. The consultation isn't clear how one can opt-in to social media, but suggests that brands will have to set privacy controls on posts about HFSS products. Given how draconian this is, it has all the hallmarks of ending in litigation.
Who will enforce the rules?
The consultation references the appointment of a statutory regulator with overall responsibility for the restriction and that specific legislation is being considered. However, the day to day responsibility for applying the rules would remain with the ASA. There is a precedent for this sort of approach, for example Ofcom is the statutory regulator for all broadcast TV and radio advertising, but since 2004 has contracted this out to the ASA.
Learnings for industry?
The consultation document is clear on the limits of the data available, but despite the absence of data is extrapolating the worst. For example: "while the evidence is not conclusive, it's possible that restricting HFSS advertising exposure could also influence adult purchases and consumption". The current limitations on targeting advertising online means that the government is essentially inferring that a rise in online media use by children has increased their exposure to HFSS advertising – which may or may not be true, the government has no idea, but is going to ban it anyway. One possible opportunity is to quickly try to identify targeting methods that would allow comfort that only adults were targeted which can be included in the consultation response. If that data is available or can be made available quickly, it might help convince government that this is not the right path.
The consultation was published on 10 November 2020 and will run for 6 weeks with a deadline landing in the pre-Christmas week, so time is short.