By Lorraine Conway
22 September 2021 Advertising to children
Summary 1 Regulation of advertising 2 Scope of the ASA’s remit 3 British advertising Codes 4 ASA monitoring and compliance 5 ASA as an adjudicator 6 Protecting children 7 Specific issues 8 In focus: advertising and childhood obesity
commonslibrary.parliament.uk Number 8198 Advertising to children
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Contents
Summary 5
1 Regulation of advertising 7
1.1 Framework 7 1.2 Funding 7
2 Scope of the ASA’s remit 9
2.1 Advertisements covered by the ASA 9 2.2 Advertisements not covered by ASA 10
3 British advertising Codes 13
3.1 Special rules for sensitive products 13 3.2 Special rules for children 14 Non-broadcast advertising 14 Broadcast advertising 16
4 ASA monitoring and compliance 18
5 ASA as an adjudicator 19
5.1 Adjudications 19 5.2 Sanctions: non-broadcast advertisements 19 5.3 Sanctions: broadcast advertisements 21 5.4 Challenging an ASA adjudication 21
6 Protecting children 23
6.1 ASA’s position 23 6.2 Children’s recognition of advertising 25
7 Specific issues 27
7.1 Advertisements close to schools, play areas etc. 27 7.2 Sexualised imagery 27 7.3 Fear and distress 28
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7.4 Child safety 28 7.5 Age-restricted products 29 7.6 Betting and gaming 32 7.7 Advertising of HFSS foods and childhood obesity 34
8 In focus: advertising and childhood obesity 36
8.1 Debate on impact of HFSS foods advertising & past initiatives 36 8.2 Review of the evidence 38 8.3 Childhood obesity: a plan for action (June 2018) 40 8.4 First consultation (March 2019): television watershed on adverts for HFSS foods 42 8.5 Tackling obesity strategy (July 2020) 43 8.6 Second consultation (November 2020): total online HFSS advertising restriction 44 Policy rationale 44 8.7 Government response to 2019 & 2020 consultations & new legislation 47 8.8 Views of stakeholders 49 8.9 Situation in Scotland 53
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Summary
Advertisements and promotions are a feature of modern life. In the UK, the content of advertising, sales promotions and direct marketing across all media, including marketing on websites, is self-regulated by the Advertising Standards Authority (ASA). It does this by enforcing the Advertising Codes; there are separate codes for non-broadcast and broadcast advertisements. All adverts are expected to be “legal, decent, honest and truthful”.
The Advertising Codes contain strict rules to protect children (and young people) from potentially misleading, harmful, or offensive material. This is because children are less likely to be able to understand and process commercial messages in advertisements than adults. Children are also often more likely to be adversely affected by “inappropriate, scary or offensive images”. There are, for example, advertising rules to:
• prohibit advertisements from depicting children in hazardous situations or encouraging them to engage in dangerous behaviour; and • prevent advertisements from undermining parental authority or placing unfair pressure on children to buy products. The advertising rules are regularly reviewed and updated by the ASA. The ASA is independent of both the Government and the advertising industry. It is recognised by the Government and other regulators as the body to deal with complaints about advertising. Its remit includes acting on and investigating complaints about advertisements as well as proactively monitoring and acting against “misleading, harmful or offensive” advertisements, sales promotions, and direct marketing. If a complaint about an advertisement is upheld, the advertiser must withdraw or amend the advertisement and not use the advertising approach again. If the advertiser does not comply, the ASA has other sanctions at its disposal. All ASA adjudications are published.
There has been an ongoing debate about the effect of advertising on children. In recent years the focus has shifted to the impact of adverts for foods high in fat, salt or sugar (HFSS) on levels of childhood obesity. Various campaign groups and health bodies are calling for tighter restrictions, particularly in respect of television and online advertising.
The Government consulted in March 2019 and in the autumn of 2020 on proposals to extend restrictions on the advertising of HFSS products. The aim being to reduce the amount of HFSS advertising children are exposed to. The Government published its response to both consultations on 24 June 2021. It announced that new advertising restrictions would be implemented as part of its ongoing commitment to tackle childhood obesity. Specifically, a 9pm
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watershed for advertisements of HFSS foods, applicable to television and UK on-demand programmes. In addition, a prohibition on paid-for advertising of HFSS foods online. Both restrictions are legislated for in the Health and Care Bill, which was introduced in the House of Commons on 6 July 2021.
This briefing paper looks at the current advertising regulatory system in the UK, with specific reference to advertising to children. It draws heavily on the information provided by the ASA on its website. This paper also considers some specific issues relating to advertising and children, for example, the use of sexualised imagery, advertising of age restricted products, betting and gaming, and advertisements placed close to schools or play areas. The final sections of this paper consider the issue of HFSS foods advertising and childhood obesity.
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1 Regulation of advertising
1.1 Framework
The UK advertising regulatory system is a mixture of:
• self-regulation for non-broadcast advertising and • co-regulation for broadcast advertising
The ASA is the UK’s single independent advertising regulator in all mediums. It • All adverts must be does this by enforcing the Advertising Codes; there are separate codes for “legal, decent, non-broadcast and broadcast advertisements. honest and truthful” The Codes are designed to ensure that all advertising is “legal, decent, honest and truthful”. However, they also include prescriptive rules for sensitive products such as medicines and alcohol, as well as specific rules for advertising to children.
The Advertising Codes are written and maintained by two industry bodies:
• The Committee of Advertising Practice (CAP) • The CAP is responsible for the UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing, known as the “CAP Code”. • The Broadcast Committee of Advertising Practice (BCAP) • The BCAP is responsible for the “UK Code of Broadcast Advertising”, known as the “BCAP Code”.
ASA is independent of On 1 March 2011, the online remit of the ASA was extended significantly to both Government and cover marketing communications on companies’ own websites and in other industry. third-party space under their control, such as social networking sites like Twitter and Facebook. The CAP Code applies in full to this new space (see below).
1.2 Funding
This regulatory system is funded entirely by the advertising industry by a levy on advertising spend. According to the ASA website, the levy is currently set at 0.1% on the cost of buying advertising space and 0.2% on some direct mail. This is collected at ‘arm’s length’ on behalf of CAP, BCAP and the ASA by two bodies: the Advertising Standards Board of Finance and the Broadcast
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Advertising Standards Board of Finance. The ASA is therefore able to act independently of both Government and industry.
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2 Scope of the ASA’s remit
2.1 Advertisements covered by the ASA
The ASA will deal with most types of broadcast and non-broadcast advertisements but not all. The types of advertisements that the ASA will deal with are set out in Box 1 below.
Box 1: Types of advertisements regulated by the ASA
The types of advertisements that the ASA will cover, include:
• Magazine and newspaper advertisements • Radio and TV commercials (not programmes or programme sponsorship) • Television Shopping Channels • Advertisements on the Internet, including: • Banner and display advertisements • Paid-for (sponsored) search • Marketing on companies’ own websites and in other space they control like social networking sites (Twitter and Facebook) • Commercial e-mail and SMS text message advertisements • Posters on legitimate poster sites (not fly posters) • Leaflets and brochures • Cinema commercials • Advertising within smartphone and tablet apps • Direct mail (advertising sent through the post and addressed to the homeowner personally) • Door drops and circulars (advertising posted through the letter box with the homeowner’s name on) • Advertisements on CD ROMs, DVD and video, and faxes • Sales promotions, such as special offers, prize draws and competitions wherever they appear. • Online behavioural advertising
Importantly, the ASA now regulates so-called “Online Behavioural Advertising” (OBA). In a nutshell, OBA is the practice of collecting information
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from web browsers so that it can be used to present online advertisements that are more relevant to a computer user (i.e., a potential customer).
The ASA oversees rules (contained in the CAP Code) which require businesses to make it clear when they are collecting and using information for OBA, and to provide a tool so that individuals can choose not to receive it.
2.2 Advertisements not covered by ASA
The ASA has published online a comprehensive list of areas of complaint outside its remit. Types of advertisements not covered by the ASA are set out in Box 2 below.
Box 2: Types of advertisements not covered by the ASA
The types of advertisements that the ASA will not cover are listed below (together with an indication of the organisations who do cover them): • Credit advertising – The ASA have powers to investigate financial advertising on television and radio, but complaints about product-related claims in non-broadcast adverts for credit products (such as credit cards, store cards, personal loans and secured loans) should be made to the Financial Conduct Authority.
• Financial advertising - Complaints about product-related claims in non-broadcast advertisements for mortgages, general insurance, investments, pensions, cash savings and bank accounts are dealt with by the Financial Conduct Authority.
• Data protection and freedom of information - The ASA can investigate complaints about the use of personal data for marketing by mail, fax, and some e-mail as well as the content of advertising that uses those media. However, data protection and freedom of information legislation are enforced by the Information Commissioner's Office.
• Direct mail, telemarketing calls and fax marketing - To reduce the amount of direct mail received, the recipient should contact the Mailing Preference Service (MPS).
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• Discrimination on the grounds of race, sex, age or disability – Advice on discrimination in advertisements and equality law is available from the Equality and Human Rights Commission.
• Editorial content – Complaints about the editorial content of newspapers and magazines should be properly addressed to the Independent Press Standards Organisation (IPSO); complaints about the editorial content of television and radio programmes (including on the BBC) should be addressed to Ofcom; complaints about the editorial content of BBC programmes can also be sent to BBC Complaints.
• Fly posting – Since most fly posting is illegal complaints should be addressed to the relevant local council.
• Fundraising - The ASA regulates advertisements that refer to fundraising, but complaints about fundraising in general (for example on–street collections) should be addressed to the Fundraising Regulator.
• Misleading claims displayed on shop shelves or at till points - This should be reported to the relevant local authority Trading Standards office. However, the ASA can investigate complaints about any leaflets or brochures that can be taken away from a store; it can also consider complaints about sales promotions that appear in-store.
• Medicines - The ASA can investigate complaints about most medicines advertising. However, depending on the nature of the complaint, it may refer the matter to the Medicines and Healthcare products Regulatory Agency (MHRA).
• Phone-paid services - PhonepayPlus (not the ASA) is the organisation that regulates phone-paid services in the UK (the services and goods that can be bought by charging the cost to a phone bill and pre-pay accounts. These include helplines, competitions, downloads, TV voting, news alerts, charitable donations and interactive games.
• Political advertising - All complaints of political bias in television or radio advertising should be made to Ofcom. On its website the ASA states that for reasons of freedom of speech, its remit does not extend to non-broadcast advertisements where the purpose of the advert is to persuade voters in a local, national or international electoral referendum. Complaints about political advertising should be made directly to the party responsible for that advertising.
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• Products, services and contractual disputes - Companies' trading practices, contractual matters, the quality of goods and services, claims on packaging and trade names are all dealt with by local authority Trading Standards.
• Shop window displays - Misleading claims in shop window displays should be reported to the relevant local authority Trading Standards office. However, trading standards departments do not investigate complaints about taste and decency. If a member of the public finds a shop window display offensive they are advised to take it up with the shop in the first instance.
• Television and radio programme sponsorship - Programme sponsorship (where the name of the programme sponsor is announced in a ‘credit’ at the beginning and end of a programme, and when breaks occur in the programme). Complaints of this nature should be properly addressed to Ofcom.
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3 British advertising Codes
A self-regulatory system operates in respect of non-broadcast advertising under the “UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing,” known as the “CAP Code”. Non-broadcast advertising includes adverts published in the press, in leaflets, in magazines, in direct mail, or displayed on posters or billboards. It also includes commercial email and text messages and paid for space on the internet.
The system is co-regulatory for broadcast advertising, there is a co- regulatory partnership between the ASA and Ofcom. The “UK Code of Broadcast Advertising” is known as the BCAP Code. Broadcast advertising includes advertisements that are broadcast on the television or on the radio.
Compliance with the appropriate Advertising Code is mandatory.
3.1 Special rules for sensitive products
The Advertising Codes contain wide-ranging rules designed to ensure that advertising is socially responsible and conform with fair competition principles. These broad principles apply regardless of the product being advertised. In addition, the Codes contain special rules for specified ‘sensitive’ products, such as:
• alcohol • tobacco • HFSS foods • weight control and slimming products • financial products • gambling • medicines • medical devices • health-related products • beauty products and so on
These special rules sit on top of the general Code provisions that all advertisements must not “mislead, harm or offend”. In effect, they add an extra layer of protection.
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3.2 Special rules for children
Non-broadcast advertising The underlying principle for non-broadcast advertising (under the CAP Code) is that care should be taken when featuring or addressing children in marketing communications. A child is deemed to be someone under 16.
The way in which children perceive and react to marketing communications is influenced by their age, experience, and the context in which the message is delivered. Marketing communications that are acceptable for young teenagers will not necessarily be acceptable for younger children. The ASA will take those factors into account when assessing whether a marketing communication complies with the Code.
Box 3 sets out the main rules about advertising to children under the CAP Code.
Box 3: Non-broadcast (CAP) Code: rules on advertising to children
Harm 5.1 Marketing communications addressed to, targeted directly at or featuring children must contain nothing that is likely to result in their physical, mental or moral harm. 5.1.1 Children must not be encouraged to enter strange places or talk to strangers. 5.1.2 Children must not be shown in hazardous situations or behaving dangerously except to promote safety. Children must not be shown unattended in street scenes unless they are old enough to take responsibility for their own safety. Pedestrians and cyclists must be seen to observe the Highway Code. 5.1.3 Children must not be shown using or in close proximity to dangerous substances or equipment without direct adult supervision. 5.1.4 Children must not be encouraged to copy practices that might be unsafe for a child. 5.1.5 Distance selling marketers must take care when using youth media not to promote products that are unsuitable for children. Credulity and unfair pressure
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5.2 Marketing communications addressed to, targeted directly at or featuring children must not exploit their credulity, loyalty, vulnerability or lack of experience. 5.2.1 Children must not be made to feel inferior or unpopular for not buying the advertised product. 5.2.2 Children must not be made to feel that they are lacking in courage, duty or loyalty if they do not buy or do not encourage others to buy a product. 5.2.3 It must be made easy for children to judge the size, characteristics and performance of advertised products and to distinguish between real-life situations and fantasy. 5.2.4 Adult permission must be obtained before children are committed to buying complex or costly products. 5.3 Marketing communications addressed to or targeted directly at children. 5.3.1 Must not exaggerate what is attainable by an ordinary child using the product being marketed. 5.3.2 Must not exploit children's susceptibility to charitable appeals and must explain the extent to which their participation will help in any charity-linked promotions. Direct exhortation and parental authority 5.4 Marketing communications addressed to or targeted directly at children. 5.4.1 Must not actively encourage children to make a nuisance of themselves to parents or others and must not undermine parental authority. 5.4.2 Must not include a direct exhortation to children to buy an advertised product or persuade their parents or other adults to buy an advertised product for them. 5.5 Marketing communications that contain a direct exhortation to buy a product via a direct-response mechanism must not be directly targeted at children. Direct-response mechanisms are those that allow consumers to place orders without face-to-face contact with the marketer. Promotions 5.6 Promotions addressed to or targeted directly at children. 5.6.1 Must make clear that adult permission is required if a prize or an incentive might cause conflict between a child's desire and a parent's, or other adult's, authority. 5.6.2 Must contain a prominent closing date if applicable (see rule 8.17.4). 5.6.3 Must not exaggerate the value of a prize or the chances of winning it.
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5.7 Promotions that require a purchase to participate and include a direct exhortation to make a purchase must not be addressed to or targeted at children.
Broadcast advertising The underlying principle for broadcast advertising (under the BCAP Code) is that children must be protected from advertisements that could cause physical, mental or moral harm. A child is deemed to be someone under 16.
The context in which an advertisement is likely to be broadcast, and the likely age of the audience, must be taken into account to avoid unsuitable scheduling. Advertisements that are suitable for older children and young persons but could distress younger children must be sensitively scheduled or placed.
This section of the BCAP Code should therefore be read in conjunction with Section 32: Scheduling. In a nutshell, care must be taken when scheduling advertisements that could frighten or distress children or could otherwise be unsuitable for them: those advertisements should not be scheduled or placed in or around children's programmes or in or around programmes likely to be seen by significant numbers of children. Care must also be taken when featuring children in advertisements.
Box 4 below sets out the main rules about advertising and children under the BCAP Code.
Box 4: Broadcast (BCAP) Code: rules on advertising to children
5.1 Advertisements that are suitable for older children but could distress younger children must be sensitively scheduled (see Section 32: Scheduling). 5.2 Advertisements must not condone, encourage or unreasonably feature behaviour that could be dangerous for children to emulate. Advertisements must not implicitly or explicitly discredit established safety guidelines. Advertisements must not condone, encourage or feature children going off alone or with strangers. (This rule is not intended to prevent advertisements that inform children about dangers or risks associated with potentially harmful behaviour.) 5.3 Advertisements must not condone or encourage practices that are detrimental to children's health. 5.4 Advertisements must not condone or encourage bullying.
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5.6 Advertisements must not imply that children are likely to be ridiculed, inferior to others, less popular, disloyal or have let someone down if they or their family do not use a product or service. 5.7 Advertisements must not take advantage of children's inexperience, credulity or sense of loyalty. Advertisements for products or services of interest to children must not be likely to mislead; for example, by exaggerating the features of a product or service in a way that could lead to children having unrealistic expectations of that product or service. 5.8 Child actors may feature in advertisements, but care must be taken to ensure that those advertisements neither mislead nor exploit children's inexperience, credulity or sense of loyalty. 5.9 Advertisements must not include a direct exhortation to children to buy or hire a product or service or to persuade their parents, guardians or other persons to buy or hire a product or service for them. 5.10 Advertisements that promote a product or service and invite consumers to buy that product or service via a direct response mechanism must not be targeted directly at children. Direct-response mechanisms are those that allow consumers to place orders without face-to-face contact with the supplier. 5.11 If it includes a price, an advertisement for a children's product or service must not use qualifiers such as "only" or "just" to make the price seem less expensive. 5.12 Television only – Advertisements for a toy, game or comparable children's product must include a statement of its price or, if it is not possible to include a precise price, an approximate price, if that product costs £30 or more. 5.13 Advertisements for promotions targeted directly at children: 5.13.1 Must include all significant qualifying conditions 5.13.2 Must make clear if adult permission is required for children to enter. Advertisements for competitions targeted directly at children are acceptable only if the skill required is relevant to the age of likely participants and if the values of the prizes and the chances of winning are not exaggerated. 5.14 Promotions that require a purchase to participate and include a direct exhortation to make a purchase must not be targeted directly at children. Advertisements for promotions directly targeted at children should comply with Section 28: Competitions.
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4 ASA monitoring and compliance
Compliance with the appropriate Advertising Code is mandatory. The ASA accepts complaints from the public and industry about advertisements that seem to have breached those Codes and all upheld adjudications are strictly enforced by the ASA (see below).
In addition to dealing with complaints, the ASA is required to monitor the media to make sure that the Codes as well as its rulings are adhered to. If its Compliance Team find a breach, they will contact the company or broadcaster responsible and seek an assurance that the advertisement will be changed.
The ASA also conducts regular compliance surveys into specific media or industry sectors to ensure the Codes are being followed in those areas. Advertisements that appear to be in breach of the Codes are either amended or removed. 1
1 Advertising Standards Authority website, ‘Our proactive work”
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5 ASA as an adjudicator
5.1 Adjudications
The ASA responds to complaints from consumers and industry about Publications of ASA advertisements that appear to have breached the Codes. If a complaint is rulings upheld, then the advertisement must be withdrawn or amended. The ASA Council is the body that adjudicates on investigations of complaints. The ASA publish rulings on its adjudications every Week. Its rulings are published on its website for five years.
The ASA website states that any complaint made by a member of the public about an advert will remain anonymous; this is the case even if the complaint is upheld and the adjudication published. Since the role of the ASA is to investigate potential breaches of the Advertising Codes, it reasons that naming private complainants would not assist this process or have any bearing on the outcome. However, the ASA usually names competitors in respect of “business to business” complaints and name orchestrated campaign groups when and where these arise.
According to the ASA, most advertisers and broadcasters comply with ASA rulings, but for those who don’t, there are consequences:
The vast majority of advertisers and broadcasters agree to follow ASA rulings and for those that are having difficulty doing so, rather than punish them, our aim is to work with them to help them stick to the Advertising Codes. However, for the small minority of advertisers who are either unable or unwilling to work with us, some of the sanctions at our disposal can have negative consequences.
One of our most persuasive sanctions is bad publicity – an advertiser’s reputation can be badly damaged if it is seen to be ignoring the rules designed to protect consumers. 2
5.2 Sanctions: non-broadcast advertisements
In respect of non-broadcast advertisements, most sanctions are coordinated through CAP (whose members are trade associations representing
2 Advertising Standards Authority, “Sanctions”
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advertisers, agencies, and media). There are several CAP sanctions, which can be employed in different circumstances (see Box 5 below).
Importantly, for misleading or unfair advertising, the ASA can refer the matter Statutory backstop to Trading Standards to take action under the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008). 3 For the ASA, Trading Standards acts as its “legal backstop”. It will normally make a referral in circumstances where ASA’s sanctions have not deterred a marketer from continuing with misleading advertising. It is then Trading Standards independent decision whether to investigate or take any enforcement action, in accordance with their own enforcement policy and administrative functions.
Box 5: ASA sanctions for breach of CAP Code
If a non- broadcast advertisement is found to be in breach of the CAP Code, one or more of the following sanctions might be employed depending on the circumstances:
• Ad Alerts - CAP can issue alerts to its members, including the media, advising them to withhold services such as access to advertising space. • Withdrawal of trading privileges - CAP members can revoke, withdraw or temporarily withhold recognition and trading privileges. (For instance, the Royal Mail can withdraw its bulk mail discount, which can make running direct marketing campaigns prohibitively expensive). • Pre-vetting - Persistent or serious offenders can be required by the ASA to have their marketing material vetted before publication. This pre- vetting can last for two years. • Sanctions in the digital space - CAP has additional sanctions that can be invoked to help ensure marketers’ claims on their own websites, or in other non-paid-for space under their control, comply with the Codes. Specifically, CAP can ask internet search websites to remove a marketer’s paid-for search advertisements when those advertisements link to a page on the marketer’s website that hosts non-compliant marketing communications. Marketers may face adverse publicity if they cannot or will not amend non-compliant marketing communications on their own websites or in other non-paid-for space online under their control. Their name and non-compliance may be featured on a dedicated section of the ASA website and, if necessary, in an ASA advertisement appearing on an appropriate page of an internet search website.
3 It should be noted that Trading Standards might also act under the Business Protection from Misleading Marketing Regulations 2008
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5.3 Sanctions: broadcast advertisements
In respect of broadcast advertisements, the responsibility to withdraw, change or reschedule a commercial, lies with the broadcasters. This is because broadcasters are obliged by a condition of their broadcast licences to enforce ASA rulings. If a broadcaster persistently runs an advertisement that is in breach of the Codes, the ASA may refer the broadcaster to Ofcom. In turn, Ofcom can impose fines and even withdraw their licence to broadcast.
Although the obligation to comply with the Codes rests with the broadcaster, advertisers also suffer consequences if their broadcast advertisements breach the Codes (see Box 6 below).
Box 6: Consequences: breach of BCAP Code
If a broadcast advertisement is found to be in breach of the BCAP Code, one or more of the following sanctions might be employed depending on the circumstances:
• They might be subjected to bad publicity generated by an upheld complaint to the ASA. • Advertisers might also have wasted hundreds of thousands of pounds making the banned advertisement in the first place and lost the revenue that it might have generated. • Since broadcasters cannot show advertisements that breach the Codes, advertisers might lose prime advertising slots in which a banned advertisement has been booked to appear.
5.4 Challenging an ASA adjudication
In certain circumstances, advertisers, or complainants (often a member of Independent review the public) can request a review of the ASA Council’s adjudication. Both sides procedure have 21 days in which to ask the Independent Reviewer of ASA Adjudications to review the case. But they must be able to establish that:
• a substantial flaw of process or adjudication is apparent, or • additional relevant evidence is available
Full terms of reference of the Independent Review procedure for non- broadcast adjudications are set out in the CAP Code and in the ASA procedures for investigating complaints under the BCAP Code for broadcast adjudications.
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If the Independent Reviewer decides not to accept the request (in whole or in Judicial review part) because he considers that it does not meet either of the two grounds set out above, he will inform the person making the request accordingly. If the Reviewer accepts a request, he will inform the other parties to the case that a request for review has been accepted and invite their comments on the submission made by the party requesting the review. At the end of the investigation, he will make a recommendation to the ASA Council which may ask for the Council to reconsider its ruling. The Council’s adjudication on reviewed cases is final. Adjudications that are revised following a review will be republished on the ASA website.
The ASA is recognised by the court as being a public organisation for the purposes of Judicial Review. However, it should be noted that there are very strict time limits in which to bring Judicial Review proceedings.
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6 Protecting children
6.1 ASA’s position
The Advertising Codes contain rules specifically designed to protect children. For the purposes of both Codes, a child is defined as being under 16 years old. The Codes contain specific rules on targeting children and young people and reflect the Consumer Protection from Unfair Trading Regulations 2008 which protect children (as well as adults) from unfair trading practices, including being misled, exploited, or harmed by advertising.
On its website the ASA states that the protection of children sits at the heart of the Advertising Codes, because of their lack of experience, children are less likely to be as well equipped to understand and process commercial messages in adverts than adults, “they are also often more sensitive and likely to be adversely affected by inappropriate, scary or offensive images”. As such, there are strict rules in place to protect them.
Rules state that advertisements addressed to, or targeted directly at, or featuring children should not contain anything that is potentially misleading or likely to result in their physical, mental or moral harm. The ASA explains the regulatory position as follows:
Generally speaking, there is no blanket prohibition on advertising products to children, but marketers should not make a direct appeal to children to buy products or persuade their parents or other adults to buy for them. Similarly, you should not encourage children to make a nuisance of themselves nor undermine parental authority.
As well as this, you must clearly present the main characteristics of the offer/product, ensure you are clear about any commitments and include a clear statement if adult permission is necessary. It is always important to consider a child’s age and experience in considering how they may understand marketing communications. Generally, ads targeting children must not exploit their credulity, loyalty, vulnerability or lack of experience.
While it is acceptable for ads to present products to children in a positive light, they should avoid suggesting that a child might be
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unpopular, disloyal, or lacking in courage by not owning or buying the featured product. 4
The rules prohibit adverts from depicting children in hazardous situations or encouraging them to engage in dangerous behaviour. They prevent ads from undermining parental authority or placing unfair pressure on children to buy products. The rules are regularly reviewed and updated taking into consideration latest research and advertising techniques.
Advertisements should be targeted responsibly and appropriately, with consideration being given to the likely effect the image or language used might have on children. In recent years, the advertising rules surrounding HFSS products and alcohol have been significantly tightened in response to public concerns about childhood obesity and underage drinking (see below).
When investigating whether advertisements that appear in print media are appropriate for children to see, the ASA will consider the context in which they appear. A risqué advertisement in an untargeted space, such as a billboard, is likely to raise more concerns than if it appears in a targeted medium, such as a women’s magazine where children are less likely to see it.
Television and radio advertisements for certain products (e.g., age-restricted video games or alcohol) or those that contain “adult, scary or harmful” themes, must be scheduled away from programmes or times when children may be watching or listening.
As well as ensuring that advertisements targeted at, or of interest to, children are strictly regulated, the ASA ensure that advertisements aimed at adults do not cause harm or distress to children or young people. This would include, for example, ensuring that advertisements for films do not encourage or condone knife or gun use and that advertisements do not encourage young people to copy irresponsible behaviour.
As outlined above, in March 2011, the online remit of the ASA was extended to CAP and BCAP cover marketing on companies’ own websites and in other online space under Codes contain a their control – such as Twitter and Facebook. In extending the ASA’s remit, the social responsibility aim is to protect children and young people when interacting with the online clause commercial world. The crucial point to note is the over-arching social responsibility clause in both the broadcast and non-broadcast Advertising Codes. On occasions where an advertisement adheres to the letter of a Code but runs contrary to the spirit in which it was intended and is, as a result, socially irresponsible, the ASA can have it withdrawn. In effect, the social responsibility clause provides a “catch-all” for the unexpected or unintended advertisement. It benefits all consumers but is especially important in providing greater scope to the ASA to protect children.
4 Advertising Standards Authority, “Making advertising to children child’s play” CAP News, 26 November 2020
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6.2 Children’s recognition of advertising
In April 2017, CAP published new guidance on ensuring younger children can identify more integrated online marketing. 5 After a six month transitional period allowing affected advertisers to bring their advertisements into line with the rules, the guidance came into effect on 1 December 2017. The ASA can now assess relevant complaints using this guidance.
On its website, the ASA explained its approach as follows:
In 2016, CAP looked at the evidence of how children recognise online ads. Most of the time, even young children have a grasp of the signifiers that identify ads. Understanding that there is a commercial intent behind a communication allows children to assess the messages critically and respond appropriately. Evidence suggests that under-12s struggle to identify more embedded or immersive types of online ad.
The guidance requires marketers to take extra care when specifically targeting this group and take steps to help children to recognise that they’re seeing or hearing and engaging/interacting with an ad. Examples of where the guidance is likely to apply include:
• endorsements by vloggers or bloggers or other online ‘influencers’ where the endorsement is paid for and controlled by the advertiser
• video content on third-party sites where the video has the effect of promoting products or a brand
• marketing communications appearing in virtual online worlds and other games
• display advertising or other types of advertising that is, by its nature or design, not clearly separated from the surrounding content
• and advertiser-created games appearing on third-party websites.
The remedy is clearer disclosure.
[…] The exact approach will vary for different platforms or type of marketing communication. However, in principle, they should be prominent, interruptive and sufficient to identify the marketer and the commercial intent. If children are unlikely to grasp the
5 Advertising Standards Authority, “Recognition of Advertising: Online Marketing to Children Under 12”, 28 April 2017
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commercial intent because the usual signifiers are not there, marketers need to give them a helping hand.
In other words, the guidance requires advertisers to take steps to disclose the commercial intent of a communication if it is not clear from the form of the advertisement or its wider context.
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7 Specific issues
7.1 Advertisements close to schools, play areas etc.
Once planning consent has been granted for an advertising hoarding, local authorities generally have no control over the subject matter of advertisements. Complaints about the content of a billboard or poster advertisement falls under the remit of the CAP Code and are directed to the ASA.
The placement of an advertisement will have a direct bearing on whether the ASA will judge it to be acceptable. An advert might be acceptable to the ASA if it appears in a magazine intended to be read by an adult but might be unacceptable if it appears on a billboard.
The University of Glasgow has published work exploring children’s exposure to unhealthy advertising at bus stops 6 and tobacco retailers. 7 Both studies used advanced methodologies by inviting children to wear GPS devices to measure real exposure.
7.2 Sexualised imagery
In 2011, the Department for Education published a report, “Letting Children be Children”, highlighting concerns about the sexualisation and commercialisation of children. The ASA responded to the issues raised in this report by reconsidering its position in relation to sexualised imagery in posters. Outdoor posters (e.g., billboards) which are “overtly/explicitly sexual” are now prohibited, and material considered “sexually suggestive” must carry a placement restriction, ensuring it does not appear within 100 metres of a school.
6 “Exposure to unhealthy product advertising: Spatial proximity analysis to schools and socio-economic inequalities in daily exposure measured using Scottish Children’s individual-level GPS data”, Jonathan R. Olsen, Chris Patterson, Fiona M. Caryl, Tony Robertson, Stephen J. Mooney, Andrew G. Rundle, Richard Mitchell, Shona Hilton, Science Direct, volume 68, March 2021, 102535 7 “Socioeconomic inequalities in children’s exposure to tobacco retailing based on individual-level GPS data in Scotland”, Fiona Caryl, Niamh K Shott, Jamie Pearce, Garth Reid, Richard Mitchell, Tobacco Control, (2020), BMJ, Volume 29, Issue 4
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On 2 January 2018, rules 4.8 and 4.13 were added to the CAP and BCAP Codes respectively. These rules state that advertisements should not portray or represent anyone who is, or seems to be, under 18 years old in a sexual way. This does not apply to advertisements whose principal function is to promote the welfare of, or to prevent harm to, under 18s provided any sexual portrayal or representation is not excessive.
When assessing advertisements, the ASA will consider whether models seem to be younger than 18, as well as their real age. It is not acceptable to present models in a sexual way if they could appear to be under 18, even if they are over 18. In addition, symbols of youth, such as school uniforms, will be unacceptable in an advertisement if used in a sexual context.
In effect, the Codes do not prevent marketers from using images of children, but they should do so in a socially responsible manner.
7.3 Fear and distress
Marketers are expected to take care that their adverts are not likely to cause fear or distress to children. Specifically, rules 5.1 of the CAP Code prohibits advertisers from using anything in their advertising which is likely to result in children’s physical, mental or moral harm.
This means that marketers must ensure that any adverts that do contain frightening or disturbing imagery are not targeted at children or in a medium where they are likely to be seen by children. Since children are regarded as being particularly at risk from online marketing, including social media and apps, marketers are expected to make use of age restriction tools where applicable.
Under rule 5.1 of the BCAP Code, broadcast advertisements that are suitable for older children but could distress younger children must be sensitively scheduled.
7.4 Child safety
Rules 5.1.1 to 5.1.5 of the CAP Code sets out safety issues relating to children that marketers should avoid in their advertising. These include (but are not limited to) encouraging unsafe activities, entering strange places, or talking to strangers, showing children in hazardous situations or behaving dangerously.
Similarly, under rule 5.2 of the BCAP Code, broadcast advertisements must not condone, encourage or unreasonably feature behaviour that could be dangerous for children to emulate. Advertisements must not implicitly or explicitly discredit established safety guidelines. Advertisements must not
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condone, encourage or feature children going off alone or with strangers. 8 Under rule 5.3, advertisements must not condone or encourage practices that are detrimental to children’s health.
In short, given the risk of emulation, advertisements in general (regardless of whether they are targeted at children) should not include children taking part in unsafe activities.
7.5 Age-restricted products
The ASA requires marketers of alcoholic drinks, gambling products, lotteries, electronic cigarettes and HFSS foods to take special care. Similarly, marketing communications for diets should not appeal particularly to those under 18 and care should be taken to place such adverts appropriately.
On its website, the ASA sets out the position on age-restricted products as follows:
Although the Codes define a child as anyone under 16, some rules also require placement away from young people (i.e. 16 to 17- year olds). A huge number of children and young people use the internet to (among other things) play games and visit social networking sites. We therefore advise marketers to check the audience profiles of any media they plan to advertise in, online and offline, in order to satisfy themselves that they are not at risk of targeting the wrong age groups.
Marketers must take care with ads for age-restricted products, and not target products such as alcoholic drinks, gambling products and electronic cigarettes at children and young people – or lotteries and foods/soft drinks high in fat, salt or sugar (HFSS) at children. This includes ensuring that ads are not placed in or around media obviously directed at the protected age category, such as games websites, for young children.
Those wishing to advertise alcohol, e-cigarettes, and gambling also need to be aware that their marketing should not have a “particular appeal” to children. Whilst this depends very much on context, generally marketers should avoid using cartoon characters or words or images associated with youth culture. 9
In effect, alcohol, gambling, lottery, and e-cigarette advisers are advised by the ASA to take care to ensure they are not directing their advertising at
8 This rule is not intended to prevent broadcast advertisements that inform children about dangers or risks associated with potentially harmful behaviour 9 Advertising Standards Authority, “Making Advertising to children “Child’s play”, CAP News, 26 November 2020
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under-18s through the selection of media, style of presentation, content or context in which they appear. The ASA explains the position as follows:
Generally, no medium with an audience that is more than 25% under 16 should be used to advertise HFSS products or lotteries and not more than 25% under 18 for alcohol, gambling and electronic cigarettes. It is, obviously, never acceptable to include an under-age consumer in a directly targeted audience/mailing list for such products.
When it comes to social media, as well as taking audience composition-based steps to prevent users who are registered as under 16 from viewing age-restricted ads, the ASA is likely to expect marketers to make full use of any tools available to them, such as interest-based targeting and any linked external data, to ensure that ads are targeted at age-appropriate users, particularly given that it is possible for younger users to misreport their age.
Where such tools are available, the ASA has ruled that the general 25% consideration in the targeting rule does not apply. As many social media ads can be (and usually are) targeted at a defined set of users, the ASA does not consider it relevant that less than 25% of the total platform audience is under-age and expect marketers to be taking all reasonable steps to exclude under-age consumers from the targeted audience. 10
The ASA has published guidance on both “Non-broadcast ad placement” (13 April 2017) and “Age-restricted ads online (non-broadcast)” (19 January 2021).
On 29 July 2021, the ASA published its monitoring and enforcement report, “Protecting Children in Mixed-age Online Media”, in which it assessed the distribution of ads for alcohol, gambling and HFSS products on websites and YouTube channels where adults comprise over 75% of the overall audience. 11 This project, conducted over a three-week period in 2020, used avatar technology to identify trends in how these ads are being delivered to adult, child and/or age-unknown audience groups. The project focused on dynamically served age-restricted ads and non-logged-in mixed-age media.
As a result of its findings, the ASA has called on advertisers to make better use of audience and media targeting tools to minimise children’s exposure to dynamically served age-restricted ads on mixed-age sites. 12 The ASA has also called on third parties involved in the distribution of these ads to ensure the data and modelling on which these tools rely are accurate and as effective as
10 Advertising Standards Authority, “Children targeting”, 1 August 2018 11 Advertising Standards authority, “Protecting Children in Mixed-age Online Media – Targeting Age- restricted ads away from children – An ASA Monitoring and Enforcement Report”, 29 July 2021 12 Ibid
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they can be. 13 In making these requests the ASA goes beyond the approach taken under the current CAP Code, but thinks this is justified:
In pursuit of a legitimate regulatory objective to minimise children’s exposure to age-restricted ads, the ASA considers it is proportionate to encourage advertisers to make use of this technology, where available, to further target their dynamically served ads away from child and age-unknown audience.
The findings of this Report suggest marketers of age-restricted products and third parties which play a part in distributing these ads online, could do more to demonstrably skew these ads away from child and age-unknown audiences, in line with CAP Guidance on Age- Restricted Ads online. 14
Alongside this report, the ASA has also undertaken a year-long project to assess whether online advertisers are complying with the CAP Code requirement that adverts for certain products should be targeted away from child audiences. 15 The ASA described its monitoring of online ads as follows:
The ASA is using technology to proactively monitor online ads to help build a culture of zero tolerance for age-restricted ads appearing on websites aimed at children. We expect advertisers and the parties they contract with to use the sophisticated tools available to them to target their ads responsibly. 16
On 24 June 2021, the Government announced plans to introduce new advertising restrictions. 17 On 6 July 2021, the Health and Care Bill was introduced into the House of Commons. One aim of the Bill is to introduce restrictions on the advertising of HFSS products in the UK, including a ban on paid-for online advertising of HFSS foods. On-demand programme services (ODPS) will also be in scope. If enacted, the advertising restrictions are due to take effect in 2023. For further information, see below to sections 8.6 to 8.8 of this briefing paper.
This new HFSS policy does not affect the requirements of the CAP Code regarding the targeting of online ads for other age-restricted products (e.g., alcohol, gambling etc).
13 Ibid 14 Advertising Standards authority, “Protecting Children in Mixed-age Online Media – Targeting Age- restricted ads away from children – An ASA Monitoring and Enforcement Report”, 29 July 2021 15 Advertising Standards Authority, “Protecting children online”, 26 August 2020 16 Ibid 17 Department of Health and Social Care, “New advertising rules to help tackle childhood obesity”, 24 June 2021
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7.6 Betting and gaming
The Gambling Act 2005 came into effect fully on 1 September 2007. The Gambling (Licensing and advertising) Act 2014 took effect on the 1st November 2014. It contains provisions relating to the licensing of gambling operators advertising or offering remote gambling facilities to consumers in the UK. All gambling advertisements must comply with the law as well as the British Advertising Codes.
The Advertising Codes on gambling products makes specific reference to the protection of children and young people. Box 7 below, sets out the specific rules under both the CAP and BCAP Codes. For the purposes of the gambling rules, children are people of 15 and under and young persons are people of 16 or 17.
It should be noted that under the CAP Code, rules apply to marketing communications for “play for money” gambling products and marketing communications for “play for free” gambling products that offer the chance to win a prize or explicitly or implicitly direct the consumer to a “play for money” gambling product, whether on-shore or off-shore.
Under rule 16 of the CAP Code, marketers should not exploit the young or vulnerable nor imply gambling can solve financial or personal problems or is indispensable, a rite of passage or linked with sexual success. In addition, under the CAP Code, advertisement for gambling products must be socially responsible; consideration is given to protecting children, young persons, and other vulnerable persons from being harmed or exploited. Various ASA formal rulings have established that adverts that are deemed to appeal particularly to children will be found in breach of the Code, even if they appear in contexts where children are unlikely to see them.
Box 7: Marketing of gambling products: protection of children
The CAP Code states: 16.1 Marketing communications for gambling must be socially responsible, with particular regard to the need to protect children, young persons and other vulnerable persons from being harmed or exploited. 16.3 Marketing communications must not. 16.3.1 portray, condone or encourage gambling behaviour that is socially irresponsible or could lead to financial, social or emotional harm. 16.3.16 condone or encourage criminal or anti-social behaviour. The BCAP Code states:
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17.3 Advertisements must not: 17.3.1 portray, condone or encourage gambling behaviour that is socially irresponsible or could lead to financial, social or emotional harm. 17.4 Advertisements for gambling must not: 17.4.2 condone or encourage criminal or anti-social behaviour.
Advergames are typically electronic games that are used to advertise a product, brand or an organization. They are accessible on social media sites, companies’ own websites and as downloadable content or apps on mobile devices. There is an ongoing debate about the use of advergames and their potential appeal to children. The ASA has explained its approach position as follows:
For the avoidance of doubt, advergames in paid-for space online are covered by the relevant rules of the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code). Similarly, advergames that are made available on the advertiser’s own website, as downloadable apps or in social media under the advertiser’s control and that are directly connected with the supply or transfer of goods, services, opportunities and gifts must also comply with the CAP Code.
To date, the ASA has received very few complaints about advergames. Those it has received concern the potential appeal to children and the perceived harm that that might have. The CAP Code has an overarching principle that marketers should take care when addressing children in marketing and should bear in mind that children’s understanding of, and reaction to marketing communications will be affected by their age, experience and the context in which the message is delivered.
The CAP Code also requires that ads are obviously identifiable as such (Rule 2.1). In determining whether advergames conform to this rule, the ASA will likely consider the context in which the advergame is made available, any references to the product, brand or organisation in or around the game and the target audience. 18
18 Advertising Standards Authority, “Advergames”, CAP News, 17 May 2012
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7.7 Advertising of HFSS foods and childhood obesity
There has been an ongoing public debate about the impact of advertising of HFSS products on childhood obesity. An HFSS product is a food or soft drink that is high in fat, salt or sugar (as classified by the Department of Health (DH) nutrient profiling model). Information on the DH’s nutrient profiling model is available from the GOV.UK website.
Both the CAP and BCAP Codes place restrictions on the placement and content of HFSS product advertisements (see Box 8 below).
Box 8: Rules that govern the advertising of HFSS products
HFSS products can be promoted both directly, by including them in an advertisement, and indirectly, through using brands or branding that is synonymous with a specific HFSS product. This can be through product- related branding or, more broadly, company or corporate branding. Both the CAP Code and the BCAP Code include specific rules on HFSS product advertising restricting the placement and content. The relevant rules are as follows:
• CAP Code section 15 includes rules 15.14 (promotional offers), 15.15 (use of licensed characters and celebrities) and 15.18 (placement of HFSS product advertising). • BCAP Code Section 13 includes rules 13.9 (promotional offers) and 13.10 (use of licensed characters and celebrities). Section 32 includes rule 32.5 (scheduling of HFSS product advertising.
These restrictions do not apply to:
• Advertisements for non-HFSS products; or • Brand advertising that does not have the effect of promoting a specific HFSS product
CAP and BCAP acknowledge that differentiating an HFSS product advertisement from a brand advertisement is not always easy, it has therefore published guidance. 19
19 ASA Guidance, “Identifying brand advertising that has the effect of promoting an HFSS product”, 16 June 2017
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Broadcast advertising for HFSS products is subject to the following controls:
• Advertisements for HFSS products are prohibited from appearing during or adjacent to television programmes commissioned for, principally directed at or likely to appeal particularly to audiences below the age of 16. • In effect, the BCAP Code imposes a total ban on the advertising of HFSS food and drink during children’s TV programmes, on dedicated children’s broadcast channels, and in programmes of particular appeal to children under the age of 16.
Non-broadcast advertising for HFSS products is subject to the following controls:
• Advertisements for HFSS products cannot appear in non-broadcast children’s media or media where the audience is more than 25% under the age of 16. • Additionally, where the content is likely to be seen as directly targeting under-12s, it cannot include promotions, or licensed characters or celebrities popular with under 16s. These restrictions apply to adverts that promote HFSS products directly and those that have the effect of promoting specific HFSS products by using ‘branding’ that is synonymous with a HFSS product or a range of products that is mainly HFSS.
Since it is not always easy to identify brand advertising that has the effect of promoting an HFSS product, in June 2017 the ASA published guidance on “Identifying brand advertising that has the effect of promoting an HFSS product”. 20
To reduce levels of childhood obesity in the UK, the Government announced in June 2021 its plans to introduce new restrictions on the advertising of HFSS products online and on television, due to take effect in 2023. 21 On 6 July 2021, the Health and Care Bill was introduced into the House of Commons. If enacted, the Bill would introduce restrictions on the advertising of HFSS products in the UK, including a ban on paid-for online advertising of HFSS foods. On-demand programme services (ODPS) would also be in scope. The Bill is currently progressing through Parliament. Section 8 of this briefing paper (below) provides further detailed information.
20 Ibid 21 Department of Health and Social Care, “New advertising rules to help tackle childhood obesity”, 24 June 2021
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8 In focus: advertising and childhood obesity
The Government believes that obesity is one of the greatest long-term health challenges the UK faces, with 1 in 3 children leaving primary school already overweight or living with obesity. 22 In addition, around two-thirds (63%) of adults are above a healthy weight and of these, half are living with obesity. 23 Evidence suggests that people who are overweight or are living with obesity are at greater risk of long-term health conditions and being seriously ill and dying from Covid-19. 24
Various campaign groups and health bodies have also raised concerns about the impact of advertising for HFSS foods and drinks on levels of childhood obesity. They are calling for tighter restrictions around this type of advertising on the basis that it has a negative impact on children’s health.
8.1 Debate on impact of HFSS foods advertising & past initiatives
A ban on the advertising of HFSS products during children's television programmes, and programmes with a high proportion of children viewers, was introduced in 2007. The non-broadcast Advertising Code was also significantly tightened.
This followed the publication in 2004 of the “Choosing Health” White Paper which called for a tightening of the rules on advertising HFSS foods to children, particularly on television, as part of a package of measures aimed at reducing obesity and improving diet and nutrition.
In February 2014, the ASA announced that it would undertake work to ensure that the regulation of food and soft drink advertising continued to be effective and proportionate, particularly in respect of protecting children online. This work included:
22 NHS Digital, “National Child Measurement Programme, England 2018/19 School Year [National Statistics]”, 10 October 2019 23 NHS Digital, “Statistics on Obesity, Physical Exercise, and Diet, England 2020”, 5 May 2020 24 Department of Health and Social Care, “Policy Paper: Tackling obesity: government strategy”, 27 July 2020
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• commissioning Dr Barbie Clarke to conduct a comprehensive literature review of the impact of digital and online marketing of food and drink products to children, • undertaking a proactive monitoring survey of food adverts, with a focus online, to assess whether there are any problem areas, and • acting to bring advertising that breaks the rules into line.
In May 2014, the ASA published a statement on “Food advertising and children – making sure we have a healthy debate”. It outlined its position as follows:
We’re alive to these concerns. The issue of food and drink advertising to children is an important one and a key focus of our policy and enforcement work. Importantly, the protection of children sits at the heart of our work, and reflecting this there are strict, product specific rules, including for food and soft drinks.
For instance, they can prompt concerns about their impact and whether they have the potential to be harmful or irresponsible. It’s these concerns that have generated an ongoing debate around food advertising and children.
Strongly held views
Some health campaigners believe advertising of food and drink to children is harmful and question why we don’t introduce tougher rules or an outright ban.
First and foremost, the rules are already strict and have long prohibited any ad from encouraging poor nutritional habits or an unhealthy lifestyle in children.
Most experts agree that advertising does have some impact, but the evidence is that the impact is very small.
[…] It is not unusual for views to differ about the scope and nature of the rules governing advertising. We often find ourselves in the middle of competing and equally fervent viewpoints about whether the ad rules are too permissive or restrictive. Just as there are numerous campaigning groups who call for advertising bans or further restrictions around various products and services, there are also companies and groups who argue that advertising rules should be liberalised.
It’s our job as the advertising regulator to make sure that we maintain a balanced approach, taking into account competing views but all the while making sure the rules are based on evidence.
In July 2017, the ASA banned HFSS food ads in children’s online media, mirroring the strict standards already in place for TV. This new targeting rule
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for non-broadcast HFSS food and soft drink advertising (HFSS ads) is reproduced below:
15.18 HFSS product advertisements must not be directed at people under 16 through the selection of media or the context in which they appear. No medium should be used to advertise HFSS products if more than 25% of its audience is under 16 years of age.
The ASA has described the character of the online marketplace as follows:
Online display ads can be served dynamically and are often targeted to audience groups using the browsing history of individual users. The online marketplace is broad and varied; marketing communications targeted at UK consumers appearing on a vast range of different websites could fall within the ASA’s remit and be subject to the CAP Code’s rules on age-restricted ads. 25
8.2 Review of the evidence
In April 2018, the Committees of Advertising Practice (CAP and BCAP) announced that they would be reviewing the regulation of television advertising and the effectiveness of the new 2017 rules for non-broadcast media. The context of this review being public concern about levels of childhood obesity. The Committees outlined its joint position as follows:
The evidence shows that parental and peer influence, schools’ policy and sedentary lifestyles are the main factors driving obesity. But, it also indicates that HFSS food ads have an effect on children’s immediate food preferences. That effect might only be modest, but it’s there. So, it’s right – given the obesity crisis we face – that the UK Advertising Codes should restrict HFSS food ads to children.
Refocusing on TV
For TV, we’ve had rules in place to curb the targeting of TV HFSS food ads to children, including a complete ban on ads in children’s TV, since 2007. The rules also ban HFSS food ads around TV programmes that attract a disproportionately high child audience.
A review of ads between 2005 and 2009 showed that those rules resulted in a 37% reduction in children’s TV HFSS food ad exposure. Now, new data suggests that that trend is very likely to have continued. Children’s exposure to all TV food ads is around 40% lower now than it was in 2010. The soft drink category alone has seen a reduction of over half during that period. HFSS food ads make up only a part of all the TV ads – albeit a substantial part – and we’re
25 Advertising Standards Authority, “ASA Monitoring Report on Online HFS Ads”, 2018
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now looking at whether the TV HFSS food ads are following a similar trend to soft drinks. Identifying those ads from within the ‘All TV Food Ads’ category is not straightforward, which is why we’re currently working to ensure we get accurate figures. In the summer, we’ll publish that data.
Looking at the emerging evidence, alongside data on impact, will give us the first comprehensive picture of TV HFSS advertising and its impact on children since Ofcom’s review in 2010.
Adapting to new media landscapes
Changes in children’s media habits and the impact of our rules on TV HFSS advertising, mean the online space is now of much greater importance. Recognizing that children now spend more time online than they do watching TV, the rules were tightened in July 2017 to limit children’s exposure across non-broadcast media, including, vitally, online spaces like social media. The new rules ban HFSS food ads on children’s websites or targeted at them on social media. They also restrict such ads in other media where children make up more than 25% of the audience.
It’s early days, but the new restrictions appear to have landed well. We’re not seeing evidence of widespread or serious problems. And a handful of ongoing ASA investigations will tackle any concerns so far drawn to our attention, if necessary making it even clearer to food and drink companies where the line is drawn.
Nevertheless, it’s important for CAP to reflect more broadly on the rules, including where we think there might be scope for change. The 12-month review will be proactive in looking for problems, with a particular focus on social media and online environments. We also want to hear from key stakeholders about new evidence and their perspectives on the impact of the rules.
Both the CAP review of evidence 26 and the BCAP’s call for evidence 27 with respect to food and soft drink advertising rules are published online. Commenting on the BCAP rules, the ASA acknowledged that advertising restrictions are never going to be the silver bullet to the obesity crisis, but emerging data on the decline in children’s exposure to TV food ads shows the positive impact the current restrictions are having. 28
In 2018, as part of the ASA’s 12-month review of the impact of the non- broadcast HFSS advertising rules (predominantly Rule 15.18), the ASA began a monitoring exercise. To support this work, it used data capture technology. According to the ASA, the aim of this monitoring exercise was “to provide an insight into the targeting/delivery of HFSS ads to different internet users; it
26 CAP, “Review of the Food Rules”, 4 April 2018 27 BCAP, “Call for Evidence on Food Rules”, 4 April 2018 (consultation closed on 16 May 2018) 28 Ibid
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was not intended to provide a representation of the level of exposure to HFSS online display ads to specific age-groups”. 29 The ASA monitored the websites and publicly available social media content of 50 major food brands but did not include ads served to logged-in users on social media.
An extract from the executive summary of the ASA’s published monitoring report, Online HFSS ads”, is reproduced below:
The monitoring exercise did not identify any clear evidence of HFSS advertisers actively targeting child profile Avatars, or serving ads which were directed, through their content, at children under 12 through use of celebrities or licensed characters popular with children or promotions. 30
8.3 Childhood obesity: a plan for action (June 2018)
“Childhood obesity: a plan for action, chapter 2”, published in June 2018, outlines the actions the Government will take towards its goal of halving childhood obesity and reducing the gap in obesity between children from the most and least deprived areas by 2030. 31 As part of this action plan the Government made a commitment to consult on the advertising and promotion of HFSS foods, specifically regarding the introduction of a 9pm television watershed. 32 It would also consider whether the self-regulation of online adverts for HFSS products continues to be the right approach for protecting children. 33
In a briefing for a Westminster Hall debate in January 2018 on the impact of “junk food” marketing on children’s obesity, the Obesity Health Alliance (OHA) expressed its support for tightening the control of advertising of HFSS foods:
Collectively we all agree we need to reduce children’s exposure to junk food adverts to help reduce childhood obesity. Junk food adverts are adverts for products that are high in fat, sugar and salt (HFSS). We want existing regulations to be extended so that HFSS advertising is restricted until after the 9pm watershed. 34
29 Advertising Standards Authority, “ASA Monitoring Report on Online HFS Ads”, 2018 30 Ibid 31 Department of Health and Social Care, “Childhood obesity: a plan for action, chapter 2 – Part 2 of the government’s plan for action to significantly reduce childhood obesity by supporting healthier choices”, 25 June 2016 32 Department of Health and Social Care (DHSC),Childhood obesity: a plan for action Chapter 2, 25 June 2018 33 Ibid 34 “Westminster Hall Debate: This House has considered the impact of junk food marketing on children’s obesity”, Obesity Health Alliance (OHA),16 January 2018
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On 30 July 2018, Lord Gilbert of Panteg, the Chairman of the Communications Committee, wrote to Matt Hancock MP, Secretary of State for Health and Social Care, on the Government's consultation. In his letter, Lord Gilbert said the Committee supports the Government’s objective to reduce childhood obesity but was concerned that the measures being proposed would be a disproportionate response to the problem. An extract from this letter is reproduced below:
“Research from Ofcom in 2010 indicated that HFSS advertising did not significantly affect children’s food preferences: between 2005 and 2009 the rate of childhood obesity either remained constant or increased at the same time as a 37% reduction in children’s exposure to such advertising. We would be grateful for information about the evidence you have collected so far to suggest that further restrictions on the advertising of HFSS products on broadcast television will significantly reduce childhood obesity rates.
We also understand that many foods which might be categorised as HFSS may form part of a healthy, balanced diet. We should be grateful to know what consideration you have given to the types of food that would fall within the scope of such a ban.
The Committee is concerned that a watershed for TV advertising of HFSS products would have a serious impact on the revenue of the UK’s commercial television, including public service broadcasters, at a time when the budgets for original programming are already strained. We would be grateful to know whether as part of your consultation you intend to carry out an impact assessment of such a watershed on the production of original UK content by commercial public service broadcasters.
The Committee believes that action on childhood obesity would be more effectively directed towards food manufacturers and their products which are HFSS. What consideration have you given to postponing your consultation on an HFSS advertising watershed until you have been able to review the so-called ‘sugar tax’ on soft drinks”.
The full letter can be read online.
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8.4 First consultation (March 2019): television watershed on adverts for HFSS foods
The Government held a consultation from 18 March to 10 June 2019. 35 It sought views on a number of proposals originally set out in the action plan, including the introduction of a television 9pm watershed for adverts for HFSS products. In explaining its position, the Government said:
We are concerned that despite existing restrictions, children see a significant level of HFSS adverts through the media they engage with the most and that this can shape their food preferences and choices and, over time, lead to obesity.
This document seeks views on options across broadcast and online media in order to reduce children's exposure to HFSS advertising. We want to ensure that any future restrictions are proportionate and targeted to the products of most concern to childhood obesity. We also want to ensure that they can be easily understood by parents, so that they are supported in making healthier choices for their families. 36
An equality assessment was carried out ahead of this consultation and the Government also published the methodology of the DHSC calorie model.
The consultation was informed in part by the research of Kantar Consulting, who had been commissioned by the DCMS to research levels of advertising to children of HFSS products in broadcast media and online. 37 An extract from the findings of Kantar Consulting research is reproduced below:
On average, the viewing population of children aged 4-15 (9.36m) saw 7 minutes of food and drink advertising per week in 2017. This was down from 8.6 minutes in 2016. Within this, 2.3 minutes were found to be for HFSS products, 4.4% of the total weekly commercial advertising minutage they see on TV (the average individual child viewed 52 minutes of commercial TV advertising per week in 2017 SOURCE: BARB). 38
It considered that “a watershed would likely reduce children’s exposure to HFSS advertising by 2.50bn impacts (72%)”. However, the OHA expressed concerns about Kantar’s findings, writing:
35 Department of Health and Social Care (DHSC) and Department for Digital, Culture, Media and Sport (DCMS), “Further advertising restrictions on TV and online for products high in fat, sugar and salt (HFSS)”, 18 March 2019 36 Department of Health and Social Care and Department for Digital, Culture, Media & Sport, “Further advertising restrictions for products high in fat, salt and sugar”, 18 March 2019 37 HFSS advertising exposure research, Kantar Consulting, March 2019 (subscription required) 38 Ibid
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[…] children and young people’s actual exposure to digital HFSS marketing is, we consider, grossly underestimated by the Kantar analysis. Therefore, the savings and benefits to children’s health, wider society and the public purse will be significantly greater than estimated in the Impact Assessment. 39
Conversely, the Advertising Association (which represents UK advertisers, agencies and brands), wrote to the Government in August 2019 to suggest that the proposed restrictions would have little impact on children’s diets. 40 It said:
The Government’s own analysis shows that the proposed restrictions would only remove around 1.7 calories per day from children’s diets, even if they were to succeed, which the evidence does not actually support. There are a number of examples of industry supporting healthy lifestyle campaigns, from the Daily Mile which gets children more active by running or walking a mile a day, to Veg Power. It is our firm belief that working in partnership with industry gets better results, and on the obesity strategy, we urge a more collaborative approach. 41
Responses to this consultation were considered alongside responses to a second consultation held in the autumn of 2020 consultation (see below).
8.5 Tackling obesity strategy (July 2020)
On 27 July 2020 the Government launched its tackling obesity strategy, 42 to empower adults and children to live healthier lives. A relevant extract is reproduced below:
[…] helping people to achieve and maintain a healthy weight is one of the most important things we can do to improve our nation's health. Not only because obesity is associated with reduced life expectancy and is a risk factor for a range of chronic diseases, 43 but there is now evidence that people who are overweight or living with obesity are at greater risk of being seriously ill, and dying from COVID-19.
Therefore, it is more important than ever to support the nation in reducing overweight and obesity and help change attitudes and
39 “How much unhealthy food and drink advertising do our kids actually see online?”, Obesity Health Alliance (OHA), 10 June 2019 40 AA writes to new ministers, Advertising Association, 5 August 2019 41 Ibid 42 Department of Health and Social Care, “Policy Paper: Tackling obesity: government strategy”, 27 July 2020 43 Guh et al. (2009), “The incidence of co-morbidities related to obesity and overweight: A systematic review and meta-analysis”, BMC Public Health ↩
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drivers around food and exercise. We also know from the evidence that tackling obesity requires a wide range of interventions that cover both our diet and our physical activity, and that everyone has a role to play. 44
To help tackle childhood obesity the Government said it would introduce a television watershed for the showing of adverts for HFSS products. 45 Other measures were also announced, including:
• a new “Better Health” campaign • increasing weight management services • consulting on front of pack labelling • requiring large out of home food businesses to add calorie labels to the food they sell • consulting on introducing calorie labelling on alcohol • and legislating to end the promotion of HFSS foods by restricting volume promotions and placement in certain locations.
Linked to this obesity strategy is the Government’s Sporting Future strategy, which focuses on how important it is that everyone has opportunities to be active for physical and mental wellbeing. The Government’s school sport and activity action plan sets out how it intends to help increase children’s activity levels, ensuring children enjoy being physically active and retain active habits throughout their lives.
8.6 Second consultation (November 2020): total online HFSS advertising restriction
On 10 November 2020 the Government published a consultation paper outlining its proposals for a total ban on paid-for advertising of HFSS products online. 46 The Government regarded this consultation as an extension of its previous 2019 consultation. 47 The consultation period ended on 22 December 2020.
Policy rationale In explaining the reasons for this 2020 consultation, the Government said that evidence now shows (though it is not conclusive) that exposure to HFSS advertising can affect what and when children eat. Specifically, by increasing
44 Department of Health and Social Care, “Policy Paper: Tackling obesity: government strategy”, 27 July 2020 45 NHS Digital, “Statistics on Obesity, Physical Exercise, and Diet, England 2020”, 5 May 2020 46 Ibid 47 Department of Health and Social Care and Department for Digital, Culture, Media & Sport, “Further advertising restrictions for products high in fat, salt and sugar”, 18 March 2019
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the amount of food children eat immediately after seeing an advert and by shaping longer term food choices from a young age. 48
According to research cited in the consultation paper, 5 to 15-year olds spend around 20 minutes more online per day than in front of a television. 49 Evidence submitted to the 2019 consultation suggests that advertising of HFSS products mirrors this shift, with a 450% increase in spend on online display between 2010 and 2017. 50 As a result of this trend, the Government has revised upwards its estimate of the amount of HFSS advertising that may be seen by children online:
We now estimate around 15.1 billion child HFSS impressions online in the UK in 2019, up from our original estimate of 0.7 billion in 2017. This significant uplift is due to methodological changes in how the size of the online is estimated. 51
We acknowledge that it is currently not possible to take into account fully the effect of current restrictions around advertising HFSS products to children, and our own approach was based principally on the size of the market (noting that the estimate is informed by application of Kantar's survey based Cross-media tool, which thereby introduces an element of real world experience). The increased estimates of children’s online media consumption strengthen the case for government acting to reduce children's exposure to HFSS online and demonstrates the rising risk of children's exposure in this media where children are spending an increasing amount of time. 52
The Government suggests that while online targeting may be directionally accurate, it is of limited specific reliability. In other words, it is “likely that children are seeing HFSS adverts where this is not the intent of the regulatory system”. 53 In addition, the absence of any “independent, comprehensive, industry-recognised, gold-standard and publicly available means of audience measurement”, means it can be difficult to identify online audiences with certainty. The use of different compliance tools, standards and methods cross the online advertising environment, plus a lack of transparency in reporting data, exacerbates the issue.
In explaining the difficulty in reliably understanding the extent to which children are exposed to HFSS advertising online, the Government said:
48 Department of Health and Social Care and the Department for Digital, Culture, Media and Sport, “Total restriction of online advertising for products high in fat, sugar and salt (HFSS)”, 10 November 2020 49 Ibid 50 Ibid 51 A full explanation of the changes to the methodology can be found in the evidence note that accompanies the consultation document 52 Department of Health and Social Care and the Department for Digital, Culture, Media and Sport, “Total restriction of online advertising for products high in fat, sugar and salt (HFSS)”, 10 November 2020 53 Ibid
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This lack of transparency – reflecting not only limited independent public data, but also widespread personalisation of advertising, the significant scale of digital marketing and the relative novelty of ASA rules which were only introduced in 2017 – presents challenges in reliably understanding the extent to which children are exposed to HFSS advertising online, the media with which they engage with most as set out above. The lack of transparency also presents challenges for parents and guardians in being able to prevent children from seeing HFSS advertising online. 54
In respect of static advertising, where the ASA’s current restriction on HFSS advertising is based on a 25% child audience threshold, the Government thinks a significant number of children may still be exposed to these adverts. 55 It explained its concerns as follows:
Underpinning this is evidence of continued inadvertent breaches of HFSS rules. 33% of the websites and 95% of the YouTube channels identified as being aimed at children and included in last year's ASA HFSS research project 56 served HFSS adverts. Between April and June this year, in another online monitoring sweep, the ASA found 57 HFSS advertising on 49% of children's websites and 71% of YouTube channels aimed at children under review. Twenty-nine different HFSS advertisers were responsible for the various breaches in this latest study, contrasting with just 6 advertisers in breach of the rules across e-cigarettes, alcohol, weight control/slimming and gambling sectors, and indicating a widespread problem rather than any more isolated failure. It is important to acknowledge that work is underway to prevent breaches in all sectors. 58
Given the scale of the obesity problem, the Government thinks a restriction of online advertising for HFSS products is necessary “to effectively reduce children's online HFSS exposure and signal to industry, consumers and parents the government's determination to tackle it”. 59 The Government explained its position as follows:
Our objectives remain unchanged since the 2019 consultation. The main aim remains to reduce children's exposure to HFSS advertising, in order to help reduce their overconsumption of HFSS products. As part of this we also want to drive reformulation of products by brands, ensure that any potential future restrictions would be proportionate and targeted to the products of most concern to childhood obesity, and ensure that any potential future restrictions
54 Ibid 55 Ibid 56 Advertising Standards Authority (ASA), “ASA Monitoring Report on Online HFSS ads”, undated 57 Advertising Standards Authority, “Protecting children online: building a zero-tolerance culture to age- restricted ads in children’s media”, 26 August 2020 58 Ibid 59 Ibid
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would be easily understood by parents, so that they can be supported in making healthy choices for their families.
In addition, one of the key drivers for the Government proposing a total online restriction is “the absence of any independent, comprehensive, gold-standard and publicly available means of audience measurement online.
The Government propose applying a “watershed” to the adverts shown “instream during programming on BvoD [broadcast video on demand] platforms to mirror our approach to linear TV, separate to the approach for other online media. 60
It is hoped that a restriction on HFSS advertising online would also influence adult purchases and consumption and generate significant health benefits. 61 In speaking about the risks associated with obesity and COVID-19, the Government said:
People who live in deprived areas have higher COVID-19 diagnosis and death rates and are more likely to be living with childhood and adult obesity. Studies suggest that children from the most deprived households spend more time online than those from the most affluent, and that HFSS adverts have a greater impact on those children who are already overweight or obese than non-overweight children. This indicates that children in more deprived communities are more likely to benefit from a reduction in HFSS advertising exposure. 62
In proposing a ban on paid-for advertising for HFSS foods online, the Government’s said it wants to “build on existing regulatory structures in order to minimise disruption to industry and regulators” and ensure that “online advertising regulation sufficiently incentivises compliance and drives rapid remedial action”. 63
8.7 Government response to 2019 & 2020 consultations & new legislation
On 11 February 2021, the DHSC published a policy paper on “Integration and innovation: working together to improve health and social care for all”. This paper set out government legislative proposals for a new “Health and Care Bill”. The overriding aim being to support the health and care system, build on the collaborations that took place during the coronavirus pandemic, and
60 Ibid 61 Ibid 62 Department of Health and Social Care and the Department for Digital, Culture, Media and Sport, “Total restriction of online advertising for products high in fat, sugar and salt (HFSS)”, 10 November 2020 63 Ibid
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build on the NHS’s own Long Term Plan. 64 On the issue of obesity, the Government restated its intention to introduce new advertising restrictions. 65
On 24 June 2021, the Government published its response 66 to both the 2019 and 2020 consultations together with an impact assessment and an equality assessment. It announced it would introduce new restrictions on the advertising of HFSS products on television and online simultaneously in the new Health and Care Bill. The Government said that both measures “represents the best intervention to meet the objective of reducing children’s exposure to HFSS advertising”. 67
The Public Health Minister, Jo Churchill, explained the rationale for this policy decision:
Current advertising regulations are not going far enough to protect children from seeing a significant amount of unhealthy food adverts on TV and existing regulation does not account for the increasing amount of time children are spending online.
Analysis from September 2019 demonstrated that almost half (47.6%) of all food adverts shown over the month on ITV1, Channel 4, Channel 5 and Sky1 were for products high in fat, salt and sugar, rising to nearly 60% between 6pm and 9pm. Ofcom research suggests that children’s viewing peaks in the hours after school, with the largest number of child viewers concentrated around family viewing time, between 6pm and 9pm.
The measures set out today form part of our legislative response to tackling obesity. The government is committed to working alongside industry and will issue guidance to help them prepare for this transition. 68
The Government estimates that television and online restrictions could remove up to 7.2 billion calories from children’s diets per year in the UK which, over the coming years, could reduce the number of obese children by more
64 Frontline health and care staff, patient groups and other experts have drawn up a Long Term Plan to make the NHS fit for the future and to ensure value for money. Sustainability and Transformation Partnerships (STPs) and Integrated Care Systems (ICSs) are groups of local NHS organisations working together with each other, local councils and other partners. They are required to develop and implement their own strategies for the next 5 years on how they intend to take the ambitions that the NHS Long Plan details and turn them into local action. 65 Department of Health & Social Care, “Policy Paper: Integration and innovation: working together to improve health and social care for all”, 11 February 2021 66 Department for Digital, Culture, Media & Sport (DCMS) and the Department of Health and Social Care (DHSC), “Introducing further advertising restrictions on TV and online for products high in fat, salt and sugar: government response”, 24 June 2021 67 Ibid 68 Ibid
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than 20,000. 69 Covid-19 has also highlighted how important it is to tackle obesity, “with excess weight being a risk factor for more severe disease”. 70
On 6 July 2021, the Health and Care Bill was introduced in the House of Commons, explanatory notes also accompanied the Bill. As anticipated, one aim of the Bill to reduce children’s exposure to the advertising of less healthy food and drink products on TV and online.
If enacted, the advertising measures contained in Schedule 16 of the Bill would come into force on 1 January 2023. As with all other advertising restrictions, the rules will apply to the whole of the UK. The Government has already made a commitment to work with regulators to ensure guidance is made available to businesses before the implementation of the new restrictions. 71
A separate briefing paper, “Health and Care Bill [Bill 140 of 2021-22]”, provides detailed information about the proposed advertising restrictions contained in Schedule 16. The Bill is currently progressing through Parliament.
8.8 Views of stakeholders
The Government summarises respondents’ feedback to the March 2019 and autumn 2020 consultations in its response published on 24 June 2021. 72 It states that:
• 81% of individuals, 73% of organisations and 13% of businesses supported a watershed for television HFSS adverts. • 75% of individuals, 85% of organisations and 23% of businesses supported an online ban for HFSS adverts.
According to the Government, one respondent to its 2019 consultation drew attention to the fact that current rules already require advertisers to use multiple evidence sources where possible to ensure they are compliant with the Advertising Codes, and to exercise caution in cases where robust evidence is not available. Another respondent said that dynamically served advertising online is not strictly automated, and that “humans make conscious decisions about when and where adverts are shown online, control the buying process, and specify how ads should be targeted, with numerous points in the process
69 Ibid 70 Ibid 71 Ibid 72 Department for Digital, Culture, Media & Sport (DCMS) and the Department of Health and Social Care (DHSC), “Introducing further advertising restrictions on TV and online for products high in fat, salt and sugar: government response”, 24 June 2021
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where regulatory compliance is checked before, during and after a 73 campaign”.
Responding to these specific points the Government said:
We do not consider that this addresses fundamental concerns about flaws in the system by which advertising is targeted, which are magnified as children spend more time online, and further undermined by a lack of transparency.
A solution building on existing audience-based restrictions is therefore too dependent on an opaque and potentially porous system, over which the advertiser may sometimes have limited control, and applied to an advertising category which is unique in being age restricted in advertising but not otherwise (unlike, for example, alcohol which is age restricted for purchase and consumption).
In addition, an approach where compliance relies on the quality and reliability of targeting information and the ability to target certain advertisements away from children, may engage issues of competition. Effective and widespread targeting tools and methods would be necessary to ensure a level playing field. Some platforms may be better disposed to implement time-based targeting already, which may confer an advantage over those facing operational or practical burdens in implementing a time-based restriction. Measures to enable compliance would have to be universally accessible and compatible in order to minimise potential risks of market distortion and competitive advantage. 74
On 10 June 2019, the ASA, the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) published their response to the Government’s March 2019 consultation. They questioned the evidence base for the Government’s proposal for introducing a 9pm watershed for TV advertising of HFSS products and asked whether the existing controls in the BCAP and CAP Codes might be further developed instead. An extract from this response is reproduced below:
In relation to the pre-9pm option, CAP and BCAP raise concerns on the basis of practicality and proportionality and invite a further assessment of the relative merits of timing-based restrictions (proposed in the consultation) and audience-based restrictions, which are currently in place. CAP, BCAP and legacy ad regulators have historically favoured audience-based restrictions (combined with content rules) as the most effective and efficient means to achieve the necessary protection afforded to children while avoiding
73 Department of Health and Social Care and the Department for Digital, Culture, Media and Sport, “Total restriction of online advertising for products high in fat, sugar and salt (HFSS)”, 10 November 2020 74 Ibid
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disproportionate intrusion into adults’ TV viewing and adults’ online engagement.
[…]
If, following its consideration of consultation responses, Government is inclined to consider alternative adjustments to the current framework of restrictions, we think there is an opportunity for it to work with all parties to identify a wider range of options that may better address any harms that are not adequately addressed by the current restrictions, which continue to be effective. 75
The Internet Advertising Bureau (IAB UK), the industry body for digital advertising, was part of a group 76 that came together to respond to the Government’s autumn 2020 consultation paper and its proposal to implement a ban of HFSS adverts online. The IAB published the Ad industry’s reaction, an extract is reproduced below:
Trade bodies across the ad industry have condemned the Government's proposed ad ban as “unwarranted” and “draconian” and called for the Government to be led by the evidence, which doesn’t show that a ban would address obesity. Industry bodies including IAB UK, Advertising Association, ISBA, IPA, AOP, PPA and the NMA sent a joint letter to the Prime Minister expressing these views and calling for a proportionate approach to the issue based on robust evidence. You can read IAB UK’s full statement, which was also sent to the Government, here.
Following the launch of the Government’s consultation on how to implement a total ban online in November 2020, IAB UK issued a joint statement with the Advertising Association, ISBA and the IPA, plus run an editorial piece in The Times that calls on the Government to base their decision on evidenced policies that deliver the greatest benefit for the least economic cost. We are holding meetings with Government ministers and the Prime Minister’s advisors, and have written jointly with the AA, ISBA and the IPA to backbench MPs 77 highlighting our concerns.
On 10 November 2020, the Advertising Association also published online a “Joint Ad Industry Comment on HFSS Advertising”. 78 It urged ministers to “develop evidenced solutions that are targeted at the problem they wish to 79 address, appropriate to digital media fit for the 21st century”. The
75 Letter to the Department of Health and Social Care from the Advertising Standards Authority, the Committee of Advertising Practice and the Broadcast Committee of Advertising Practice, 10 June 2019 76 This group, organised by the Advertising Association, included ISBA, the IPA (Institute of Practitioners in Advertising) and food and drink manufacturers 77 Internet Advertising Bureau (IAB UK) “Q&A: What does an online HFSS ad ban mean?”, 17 November 2020 78 Advertising Association, “Joint Ad Industry Comment on HFSS Advertising”, 10 November 2020 79 Ibid
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Advertising Association also criticised the Government for beginning the consultation during the coronavirus pandemic:
If this policy of an outright ban goes ahead, it will deal a huge blow to UK advertising at a time when it is reeling from the impact of Covid-19. This consultation has landed just as we have entered another period of lockdown, with all the heightened uncertainty this creates for people and businesses right across the country. Businesses that should be devoting their time and energy to surviving this economically unpredictable situation will now have to devote precious resources to responding to the Government and working out whether they will even be able to advertise their products in the future. 80
Conversely, the RSCPH (Royal College of Paediatrics and Child Health) published a response developed in collaboration with the Obesity Health Alliance (OHA) (a coalition of over 40 health charities, medical royal colleges and campaign groups working together to influence Government policy to 81 reduce obesity) . While supporting the introduction of new restrictions on the advertising of HFSS products on TV and online, the RSCPH suggested that similar restrictions should be applied to other types of media:
We also think restrictions should apply to packaging, and to sponsorship, including sponsorship of TV channels, programmes, websites, sports events, and school-based activities. Sponsorship is currently regulated separately, and we need a level playing field to avoid a loophole where HFSS could be shown at the start and end of 82 advertising breaks.
The OHA published “An analysis of adverts shown during a week of ‘Britain’s 83 Got Talent’ live shows”. Among its key findings was that more than one in five (23%) of all adverts shown before 9 pm was for an HFSS food or drink. In addition, “a child who watched all six episodes up to 9pm would see over 22 minutes of unhealthy food and drink adverts – which could lead to them eating over 300 additional calories”. 84 The OHA made the following recommendation:
Despite comprehensive evidence showing the harmful effect of unhealthy food and drink advertising and Government acknowledgment of the issue, unhealthy food and drink adverts continue to be shown heavily during children’s favourite TV programmes. This analysis provides real-world evidence that
80 Ibid 81 A list of full members is available on the OHA (Obesity Health Alliance) website 82 Royal College of Paediatrics and Child Health, “Department of Health and Social Care: Further advertising restrictions for products high in fat, sugar and salt”, June 2019 83 Obesity Health Alliance, “Britain’s Got a Problem with Junk Food Adverts: An analysis of averts shown during a week of “Britain’s Got Talent’ live shows”, May 2019 84 Ibid
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hundreds of thousands of children are being exposed to unhealthy food advertising at a level that leads to excess calorie consumption.
We want to see the Government commit to introducing a comprehensive 9pm watershed on unhealthy food and drink adverts on TV and online with no exemptions. This would provide broad 85 protection for children and is supported by over 70% of the public.
In its autumn 2020 consultation document the Government cites Cancer 86 Research UK analysis. Cancer Research UK found that almost half of all food adverts shown on ITV, Channel 4, Channel 5 and Sky One were for HFSS products, rising to almost 60% between 6pm and 9pm when they are deemed 87 most likely to be viewed by children.
8.9 Situation in Scotland
The Scottish Government is also concerned about childhood obesity. On 2 July 2018, it published its own obesity strategy “A healthier future: Scotland's diet and healthy weight delivery plan” in which it called on the UK Government to further restrict the advertising of HFSS foods to children.
Recognising that childhood obesity is a UK-wide challenge, the Westminster Government has said that it will work closely with the devolved administrations to ensure approaches are aligned as much as possible. 88
85 Ibid 86 Cancer Research UK, “Analysis of revenue for ITV1, Channel 4, Channel 5 and Sky One derived from HFSS TV advertising spots in September 2019”, by Dominic Ng, Alizee Froguel and Malcolm Clark, July 2020 87 Ibid 88 HM Government, “Introducing further advertising restrictions on TV and online for products high in fat, sugar and salt (HFSS)”, 18 March 2019
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