Who: The Advertising Standards Authority (ASA); BKUK Group Ltd t/a Burger King
Where: United Kingdom
When: 7 February 2024
Law stated as at: 12 February 2024
What happened:
The ASA has recently ruled against Burger King regarding its direct email marketing that advertised high in fat, salt or sugar (HFSS) products. The public health campaign group, Food Active, challenged the email ads, on the basis that they were HFSS products targeted at children.
The ads included promotions for discounted meal deals and “buy one, get one free” offers. Food Active argued that both the selection of media and the context in which the ads appeared violated the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code), which prohibits HFSS product ads directed at people under the age of 16.
Reasonable steps
Burger King argued that it took reasonable steps to avoid targeting its ads at under 16s.
It stated that the “YourBurgerKing” service, which the emails were sent to, was designed for use by individuals who were at least 16 years old. Its terms of service stated that individuals under 16 who signed up for the service confirmed, by doing so, that they had received permission from their parent or guardian. It did not prevent individuals under 16 from signing up because of this confirmation requirement. It did not require individuals to provide their age when signing up, as it did not believe it was mandatory to do so.
Violation of CAP Code
The ASA upheld the complaint against Burger King, finding the ads were in violation of the code, and it ruled that the ads must not appear again in the form complained of. It determined that the emails sent to registered users of the “YourBurgerKing” service were ads for HFSS products. The CAP Code requires that HFSS product ads should not be directed at people under 16 through the selection of media or context.
The ASA acknowledged that Burger King’s terms of service stated that the “YourBurgerKing” service was intended for individuals who were at least 16 years old or had obtained permission from their parent or guardian. However, it found that this information was not presented on the sign-up page and registration could be completed without reading the terms of service.
Within its ruling, the ASA stated that even if a company does not collect age data from its email marketing list, businesses are still expected to take necessary measures to ensure that promotional emails containing HFSS product ads are not sent to children under the age of 16.
In this case, as users could sign up without providing a date of birth, the ASA concluded that Burger King should have taken steps to ensure that registered users under the age of 16 did not receive promotional emails for HFSS products. Burger King should have taken further steps, beyond self-declaration at the point of sign-up, to prevent under 16s from receiving promotional materials for HFSS foods.
For further information on HFSS, the ASA designation as regulator for HFSS advertising restrictions and the UK government’s plans to introduce improvement notices for breach of health and nutrition claims, see our HFSS newsletter.
Why this matters:
For businesses sending direct marketing emails, this ruling illustrates what the ASA means by “reasonable steps” to avoid targeting under 16s in this context. Unsurprisingly, the expectation is of a high level of diligence.
The ASA has made it clear that stating in the terms that a service is not available to under 16s is insufficient to meet these criteria. The ruling seems to suggest that even a prominent statement to this effect during the sign-up would be insufficient.
Even if advertisers do not collect age data, the ASA still expects them to take necessary steps to ensure they are not breaching the CAP code by sending HFSS ads to those under 16.
It is not clear how this would be achieved in practice. The practical implications of this ruling are likely to be that businesses will need to collect age data when creating a mailing list that is likely to be used for the purposes of advertising HFSS products. This will itself result in other compliance issues, particularly under the General Data Protection Regulation.
