Still digesting the blizzard of new rules governing food ads? You are not alone. In an effort to help, the Committee of Advertising Practice (the ASA sister body that writes the CAP Code) has published a guidance note on differentiating HFSS product ads from brand ads. Anna Montes comments.
Who: The Broadcast Committee of Advertising Practice
When: November 2007
Where: United Kingdom
Law stated as at: 29 November 2007
The Broadcast Committee of Advertising Practice ("BCAP") has sought to assist the advertising industry to get to grips with the new regulations governing the advertising of HFSS products to children. It has sought to do this through publishing a new guidance note on the Radio and TV Advertising Codes to seek to illustrate when they would govern the advertising of HFSS-product advertisements but not general brand advertisements.
As we have highlighted in previous articles, HFSS products are food or drink products that are assessed as being high in fat, salt or sugar in accordance with the Food Standards Agency's nutrient profiling scheme. So far as TV advertising is concerned, such products attract specific content and scheduling restrictions. The point to note though is that these restrictions do not apply to advertisements for non-HFSS products or more specifically to general brand advertising and brand sponsorship. The problem with trying to ascertain whether the new food regulations apply to TV advertising arises where advertiser's brand is inextricably linked with a distinct product. BCAP is likely to have issued its guidance because many advertisers and agencies have found that ascertaining whether the new regulations are applicable to certain types of advertisements has proved more difficult in practice than expected. BCAP itself acknowledges that differentiating between an HFSS product advertisement and a brand advertisement is "not always easy". To seek to assist, its guidance note contains a non-exhaustive list of scenarios in such a problematic analysis could arise and BCAP provides its own opinion on whether its examples of tricky ads would amount to an HFSS product advertisements or not.
Table of scenarios provided by BCAP
|Likely to be regarded as an ad for an HFSS product||Unlikely to be regarded as an ad for an HFSS product|
|An advertisement refers to or prominently features an identifiable HFSS product.||An advertisement neither refers to no prominently features an identifiable HFSS product.|
|An advertisement contains a direct response mechanic relating to a specific HFSS product.||An advertisement does not contain a direct response mechanic relating to an HFSS product but may encourage the audience to buy a non-HFSS product or may promote a range, or ranges of different products.|
|An advertisement refers to or features a brand name that is synonymous with a specific HFSS product.  That name could be featured on other products or product variants but is inextricably linke to a specific HFSS product.||An advertisement refers to or features a brand name. That name is synonymous not with a specific HFSS product but with a range, or ranges, of products that are sold under that name. |
|An advertisement refers to or prominently features a product but does not provide enough information for the audience to identify it as a product that can be nutrient profiled. The advertiser does not provide evidence that its range of that type of product is mainly non-NFSS. (For the avoidance of doubt, an advertisement that refers to a brand name that incorporates the name of a type of food or drink product will not be subject to the HFSS restrictions merely because it mentions that brand name.)|
An advertisement refers to or prominently features a product but does not provide enough information for the audience to identify it as a product that can be nutrient profiled. The advertiser provides evidence that its range of that type of product is mainly non-HFSS.
|An advertisement for a brand refers to or features, for example, a strapline, celebrity, licensed character, brand-generated character or branding synonymous with a specific HFSS product. ||An advertisement for a specific non-HFSS product refers to or features, for example, a strapline, celebrity, licensed character, brand-generated character or branding synonymous with a specific HFSS product. |
 For the purposes of the table above, BCAP has indicated that the use of the term "synonymous with" should be taken to mean "very strongly associated with" a specific HFSS product.
Why this matters:
It remains to be seen what use this table of guidance shall be to advertisers and their agencies in practice. It does also leave some questions unanswered such as how much does something have to be featured in an ad for it to be "prominently" featured? It would also have been beneficial if BCAP had provided some more detailed illustrative examples and case studies using fictitious advertising to seek to illustrate some of its points and what can sometimes be the fine line between brand advertising and HFSS product advertising.
When considering this advertising, advertisers and agencies should exercise caution when placing any importance on this guidance. It should be remembered that the table above contains a non-exhaustive list of advertisements likely to be regarded as advertisements for HFSS products and on a more general note the guidance note does not bind the ASA. It is open to the ASA to interpret the BCAP Code in a different light when assessing the circumstances associated with a particular complaint.