Recently we reported tighter restrictions on broadcast ads for foods that are high in fat, salt or sugar. Now a stricter regime looms for non broadcast food ads also, but for a simpler life do the new rules apply to the same food types? Anna Montes serves up the new CAP Code rules.
Topic: Food
Who: Committee of Advertising Practice
When: 11 April 2007
Where: London
What happened:
As reported in March's marketinglaw.co.uk update, in February following extensive consultation, Ofcom announced new regulations concerning the advertising of food and soft drinks to children where broadcast media is concerned. Ofcom laid down many of the rules the advertising and food industries were anticipating both in terms of content and scheduling restrictions. The Public Health Minister had also made it clear in the press over recent months that the Government wanted to extend the new advertising rules beyond the remit of broadcast media and that the Committee of Advertising Practice ("CAP") would be asked to implement similar restrictions so far as advertising via non-broadcast media was concerned. Well those non-broadcast rules have now arrived…..
On 11 April 2007, CAP announced its new rules for food and drink advertising via non-braodcast media and stated that the rules are aimed at helping protect childrens' health and to repsond to the rising levels of obseity in the United Kingdom. These new rules will come into force on 1 July 2007. CAP has also issued a Help Note on the new rules designed to give giudance to advertisers, agencies and the public on how the rules will be interpreted and applied.
One of the first things to note regarding the new CAP rules is that in many ways they are very similar to the food advertising regulations applicable to broadcast media. For example:
1. Both sets of regulations deem "children" to be those under the age of 16.
2. Both sets of rules contain provisions which differentiate between Licensed Characters and Brand Equity Characters. As do the broadcast regulations, the CAP rules state that "Licensed characters" and celebrities popular with children should be used with a due sense of responsibility and except for advertisements concerning fresh fruit or fresh vegetables, food or drink advertisements targeted directly at pre-school or primary school children through their content should not include licensed characters or celebrities popular with children. The CAP rules also refer to "Licensed Characters" as those borrowed equities which have no historical association with a product where "Equity Brand Characters" are characters that have been created by an advertiser and which have no separate identity outside their associated product or brand.
3. Both sets of regulations contain general prohibitions against the encouragement of poor nutritional habits or unhealthy lifestyles in children. The CAP Help Note makes it clear that it is not CAP's intention that advertisers be precluded from the responsible advertising of any products (including those which should be eaten only in moderation) but marketing communications must not encourage excessive consumption of any food or drink, frequent eating between meals or eating immediately before going to bed for example. The notion of excessive consumption will be assessed in relation to both the frequency of consumption as well as the amount consumed.
4. Both the broadcast and non-broadcast regulations contain provisions which restrict the way in which marketing communications feature promotional offers linked to food products of interest to children. The CAP rules state such advertisements should avoid creating a sense of urgency or encouraging the purchase of excessive quantities of food/drink products for irresponsible consumption.
There are also, however, some major differences between the two sets of rules which will make life a little more complicated for those advertisers who will be running campaigns that involve both an element of broadcast media and non-broadcast advertising. The main difference to note is that unlike Ofcom, CAP has not adopted the Food Standards Agency's Nutrient Profiling Scheme to determine which food/drink products are considered high in levels of fat, salt or sugar (known as "HFSS" products) and therefore governed by the new restrictions. The CAP rules apply to all foods and drink products except fresh fruit and vegetables which are specifically excluded from a number of the regulations. To avoid abuse, "fresh fruit and vegetables" are defined within the CAP Help Note as: (a) non-pre-packaged fresh fruit or fresh vegetables put up for sale to the final consumer or (b) fresh fruit or fresh vegetables packed at the point of sale or pre-packaged fresh fruit or fresh vegetables with a view to imminent sale only.
Some of the other main differences between the two sets of rules include:
1. The non-broadcast rules make explicit exceptions for fruit and vegetable products which the Ofcom rules do not.
2. The Ofcom rules contain more detailed provisions relating to pressure to purchase prohibitions and nutritional claims in food advertising.
3. The Ofcom rules make more of a distinction between those under the age of 16 and those who are pre-school or primary school children in some provisions whereas the CAP rules are more general in their references to "children".
4. The Ofcpm rules contain rules relating to Oral Health and Dietary Supplements which the new CAP rules do not.
Why this matters:
CAP's new rules concerning non-broadcast media are very similar in many places to Ofcom's rules applicable to broadcast media. This was probably intentional to ensure HFSS food and drink manufacturers could not side-step Ofcom's new restrictions by simply switching the focus of their campaigns from TV to various forms of non-broadcast media. The CAP rules therefore bring the non-broadcast media rules more closely in line with those applicable to TV in many respects.
However, as CAP has not used the Food Standards Agency's Nutrient Profiling Scheme to determine which products will be governed by the regulations as Ofcom did, health groups have expressed disappointment and have argued that what CAP has done in practice is create a less effective set of non-broadcast rules which are now at odds with Ofcom's broadcast rules. They argue that if all rules applicable to food and drink advertising used the same nutrient profiling model it would mean that HFSS manufacturers would have an incentive to reformulate their existing products or develop and advertise new products with healthy profiles so as not to disrupt their advertising campaigns and public reach. It is felt by some that different rules for different media will create confusion and difficulties for advertisers, regulators and the public. Whether we see a shift of food advertising to non-broadcast media will be revealed in time.
For the meantime, advertisers and their agencies need to become familiar with the new regulations while putting together print and other non-broadcast campaigns for launch post 1 July 2007. Having read the CAP Help Note we can expect that we will no longer see in advertising children asking for a particular product or putting them into parent's trolley in the supermarket and phrases such as "Ask Mummy to buy you…." are looking like they will become a tactic of the past.
