Food and soft drink advertising to children
20 December 2006
On 17 November, OFCOM published the results of its consultation on food and drink TV advertising to children. OFCOM essentially adopted a variation of its consultation option 1; it did not adopt the industry-proposed option 4. The main elements of its published measures to restrict TV food ads to children are:
Scheduling
Scheduling restrictions for ads for HFSS products defined using the FSA nutrient profiling model;
HFSS product ads not to be shown in or around programmes targeted at children or of particular appeal to children (defined as programmes with a child index of more than 120);
Children are defined as those under 16;
Because the original consultation’s scheduling restrictions were based on children under 10, a second, shorter consultation has taken place in December and OFCOM will announce the results in January;
All restrictions on product advertisements apply to product sponsorship (regulated by OFCOM).
Content
Content restrictions apply to ensure responsible advertising to children at all times; the rules are as BCAP recommended to OFCOM after considering the consultation responses except for:
Specific rules banning HFSS product ads directly targeted at pre-school children and primary school children from using promotional offers, licensed characters, celebrities, health claims and nutritional claims (BCAP had proposed those restrictions would apply to all food product ads, not merely those for HFSS foods);
All restrictions on product advertisements apply to product sponsorship (regulated by OFCOM).
Scope
The restrictions apply to all TV broadcasters licensed by OFCOM, regardless of the transmission area;
The restrictions apply to ads for products, not to those for brands, companies or services.
Implementation timings
Content restrictions apply to existing campaigns, and those in production and incurring expenditure, from 1 July 2007 and to new campaigns immediately after OFCOM’S forthcoming January announcement;
Scheduling restrictions apply to all campaigns from 1 April 2007;
Scheduling restrictions for dedicated children’s channels will be phased in over a period to the end of 2008;
OFCOM will review the effectiveness and scope of the restrictions in autumn 2008;
The Government will review the extent of changes (from 2003) to the nature and balance of food advertising in late 2007;
The FSA will review the operation of its nutrient profiling model after one year of use.
Neither the scheduling restrictions nor the content restrictions apply to brand advertisements. Some of the content restrictions apply to all televised ads, some to food and drink ads and some to HFSS product ads directly targeted at pre-school or primary school children. Please read them carefully if you are at all unsure of the requirements.
The Government has expressed its satisfaction with OFCOM’s statement.
The industry has expressed its concern that certain elements of the package of restrictions are not evidence-based and are disproportionate.
Non-industry lobby groups have expressed their concern that the restrictions do not go far enough, especially by rejecting the calls for a 9.00pm watershed ban.
OFCOM has not yet announced its intentions for radio advertising.
CAP has committed to transcribing the BCAP content proposal to non-broadcast media; it has yet to decide how to respond to the changes that OFCOM has made to that proposal.
The Department of Health is considering how to ensure the Government’s policy requirements should be met in non-broadcast media that lie outside the CAP:ASA self-regulatory system, notably editorial content on websites. (The CAP Code covers sales promotions and third-party ads in paid-for space on websites.)
In terms of content restrictions, OFCOM has changed BCAP’s revised content proposal in two ways:
- it has applied nutrient profiling to the restrictions proposed on the use of promotional offers, celebrities and licensed characters and nutritional or health claims in ads targeted directly at pre-school and primary school children
- it has raised the restriction on the use of nutritional or health claims targeted at pre-school children to include primary school children.
Lobby groups who have campaigned for a total pre-9.00pm watershed ban on HFSS product ads have criticised OFCOM for not going far enough and for putting the food and broadcasting industry’s interests before those of children’s health. Even though many in the food and advertising industries believe that OFCOM has departed from its declared intention to arrive at a proportionate and evidence-based set of restrictions, BCAP has accepted OFCOM’s published statement and has committed to implement the decision.
BCAP will formally publish its new scheduling and content restrictions for food and drink advertising to children as soon as OFCOM announces the results of its December consultation on the extension of the upper age limit for scheduling from 9 years to 15 years.
In the meantime, draft content rules and guidance notes are available here. The content restrictions are not subject to the December consultation and so the draft on the CAP website is in effect the final version.
The period of grace for content rules allows advertisers to use ads they have already created to be screened until the end of June. OFCOM has stated that “new campaigns” should comply with the new requirements from the date, expected in January, on which OFCOM announces the results of its December consultation. BCAP interprets that as meaning that, because BCAP’s content proposal has been known for several months and OFCOM has made few changes to BCAP’s revised proposal, advertisers will not have expected the existing rules to apply for much longer and will have considered the BCAP content proposal when planning new commercials. Although the date of OFCOM’s announcement is uncertain, BCAP has assumed it will be at the end of January.
BCAP staff understand that the BACC will continue to use the existing rules to clear proposed ads until OFCOM makes its final decision but advertisers and agencies may ask for advice on the new requirements or for clearance to be based on them. From that date, too, the BACC will clear commercials for which it has seen scripts before the end of January under the existing rules but, again, advertisers and agencies may ask for the new rules to apply. From the date of OFCOM’s decision, all BACC clearance decisions on scripts will assume the new rules apply, even if the commercial is expected to be screened before the end of June. The BACC will use the new rules for all its decisions on commercials for which scripts have been cleared against the new rules.
We expect, therefore, that commercials that are screened between 1 February and 1 July and do not comply with the new content rules were already in use, or were in production, before the end of January
Obviously an advertiser screening after the end of January any ad, whether a new one or an existing one, that complies with the existing content rules but not the new ones runs the risk of being pilloried by pressure groups and both the consumer and trade media. Advertisers of course have to bear in mind commercial pressures and never like placing themselves at a competitive disadvantage but the dangers to brand equity and company reputation of not being seen by the public or the “media” to do the right thing in response to grave concern about childhood obesity is something each advertiser will have to consider.
One aspect of the content and scheduling restrictions announced by OFCOM that did not accord with BCAP’s expectations is the application of some of them to HFSS foods, as defined by the FSA’s nutrient profiling model, only. Advertisers of foodstuffs will have to determine whether their products are HFSS products and give that information to their creative and media agencies and to the BACC and broadcasters to enable a decision to screen the commercial to be taken. That is essentially a self-certification process and it is one that the food industry, despite its opposition to the FSA’s nutrient profiling system, will have to take upon itself for any food product to be advertised henceforth to children on TV; the BACC has already produced a nutrient profile certification form for food advertisers to fill out. A competitor that wants to challenge a televised ad for a food product on the basis of its NP profile will need to give the ASA convincing evidence to back-up its challenge. If it decides that the challenge has merit, the ASA is likely to want to see rather more than merely the advertiser’s self-certification statement of its product’s NP status to rebut the challenge.
BCAP advises those interested in a steer on the likely ASA interpretation of the BCAP content restrictions to consult the BACC; if in doubt, err on the side of caution. BCAP will co-operate with the BACC in organising a seminar in February on the new restrictions. If you’d like to know more, please ring Emma or Zoe on 020 7492 2222 or e-mail events@asa.org.uk.