The UK’s uber media regulator has finally ended the debate about TV food ads and children and issued tough new rules, but are reports of extending the new regime to press and online accurate? Anna Montes reports.
When: February 2007
Few would have escaped the public debate over the last year regarding the increase in levels of child obesity and the role advertising is believed to have played in this. We have seen hot debate as to whether manufacturers of food and drink products should direct their advertising to children and what appropriate advertising is where "junk" food is considered. Furthermore, is nutritional profiling the best way to determine whether a product should be considered "unhealthy" and high in fat, salt or sugar (HFSS products)? As this debate has taken place in the public domain it has even prompted some manufacturers to take their own action, often in line with any existing Corporate Social Responsibility policies they may have. Mars is one such example who in February declared it was going to stop advertising to children under the age of 12 completely in the UK of its own accord.
The wait is now over as in February Ofcom announced its final decision in respect of its extended consultation on the advertising of food and soft drinks to children where broadcast media is concerned and laid down the rules the advertising and food industries were anticipating. Both content and scheduling restrictions have been introduced. Ofcom has decided that one of its regulatory objectives is to reduce significantly the exposure of children under 16 to the advertising of food and drink products that are high in fat, salt and sugar (HFSS products). For the purpose of the new regulations, Ofcom has accepted the use of the Nutrient Profiling scheme developed by the Food Standards Agency ("FSA") in December 2005 to identify food and drink products that are assessed as high in fat, salt or sugar (further information on this scheme can be gained from http://www.food.gov.uk/healthiereating/advertisingtochildren/nutlab/nutprofmod).
The key rules
The following is a non-exhaustive list of some of the key regulations that have been introduced by Ofcom in respect of broadcast media:
1. Advertising must avoid anything likely to encourage poor nutritional habits or an unhealthy lifestyle in those under the age of 16. A few examples of what advertising must be bearing in mind to be deemed responsible include using responsible portion sizes in advertising and not encouraging excessive consumption or eating between meals.
2. Promotional offers cannot be used in HFSS product advertisements targeted directly at pre-school or primary school children.
3. Licensed characters and celebrities popular with children must be used with a due sense of responsibility and may not be used in HFSS product advertisements directly targeted at pre-school or primary school children. It should be noted however that this rule does not apply to advertiser-created equity brand characters (such as Frosties' Tony the Tiger).
4. There is to be a total ban on all HFSS food and drink advertisements in and around all programmes of particular appeal to children under the age of 16, which are broadcast at any time of day or night on any channel. This therefore includes all pre-school children's programmes, all cable and satellite children's channels, youth-oriented programming and also any programmes which are intended for an adult audience but which are known to attract a significant proportion of viewers under the age of 16. These scheduling restrictions do not apply to foods which are not considered HFSS.
5. All restrictions will apply equally to sponsorship as they do general advertising in broadcast media.
6. There is no prohibition on general brand advertising, but Ofcom expects advertisers to take a responsible approach in interpreting this exception so that it is not abused.
7. Finally, advertisers and agencies must remember that the spirit as well as the letter of the new regulations apply to all food and drink advertisements and the new rules must also be read in conjunction with all other applicable rules within the BCAP Code (such as those relating to food and dietary supplements).
Further information relating to Ofcom's full consultation statement together with the complete content and scheduling rules can be accessed at http://www.ofcom.org.uk/consult/condocs/foodads_new/statement/statement.pdf.
The scheduling restrictions introduced by Ofcom will come into force in two stages for all channels except dedicated children's channels:
(a) With effect from 1 April 2007 – HFSS advertisements will not be permitted in or around programmes made for children (including pre-school children), or in or around programmes that are likely to be of particular appeal to children aged below 10; and
(b) With effect from 1 January 2008 – HFSS advertisements will not be permitted in or around programmes made for children or programmes that are likely to be of particular appeal to children aged below 16.
Dedicated children's channels will be allowed a graduated phase-in period, with full implementation required from 1 January 2009.
The new content restrictions came into effect immediately from 22 February 2007 for all new advertising campaigns. There is a grace period for existing commercials until 1 July 2007.
What will changes will need to occur to internal procedures?
The BACC will assume that all television scripts submitted to it for clearance are for HFSS products unless otherwise informed. If an advertiser claims that its product is not HFSS (and therefore exempt from the new scheduling and content rules), the BACC will require a written certificate to this effect signed by the advertiser. Agencies therefore need to add such certificates to the list of matters they discuss with their clients in advance of creative materials being issued to the BACC for clearance. The BACC may also request evidence of nutritional profiling in cases where a dispute arises as to the nature of the product being advertised.
What could happen next?
Not everyone is happy with these new rules. Some advertisers are aggrieved that their products which the public would not necessarily perceive as unhealthy are classified as HFSS products under the FSA's nutritional profiling scheme and therefore affected by these new rules. The Institute of Practitioners in Advertising has made it clear to its members that it is intending to continue its campaign to change elements of the FSA's categorisation of HFSS foods and to ensure that all foods are measured in 100 grammes portions. The success and levels of application of the new regulations will be reviewed by the Government later this year and then by the Food Standards Authority in 2008. Ofcom itself shall then review the rules once again in the Autumn of 2008. For the meantime therefore we have at least a year and a half of applying the rules in their current form ahead of us.
Those keeping a keen eye on the trade press recently would have noticed that many are now also questioning whether the advertising industry should prepare itself for changes to the existing non-broadcast advertising regulations also. The Public Health Minister has recently confirmed in the press that the Government wants to extend the new advertising rules beyond the remit of broadcast media and that the Committee of Advertising Practice ("CAP") will be asked to implement similar restrictions so far as advertising via cinema, magazines and the internet are concerned. CAP has responded by confirming it does intend to implement similar content rules for non-broadcast advertising of food and soft drinks and it hopes to do so by 1 July 2007. It is therefore a fair prediction that we are likely to see further new rules which closely resemble the Ofcom ruling for all forms of media.