Eversheds Sutherland (International) LLP

Advertising 'Nutritionally Deficient' Food

Question

Is it time to junk the junk food personalities?

Answer

In fulfilling its statutory duty to protect children, Ofcom - the government regulator of standards for television advertising - has moved decisively in proposing to ban the television advertisement of foods high in fat, salt and sugar (so-called HFSS products or junk food) on any channel at any time of day or night if a programme is of particular appeal to under 16s.

The proposed move to an era of enhanced regulatory control would impose even tighter restrictions with regard to primary school children, including a ban on the use of celebrities, cartoon characters and promotional free gifts advertising junk food via television when targeted at primary school children. Does this spell the end of the much loved television food personalities and food cartoon characters of my youth?

Ofcom recently extended the consultation period with regard to the package of reforms it has announced, so that responses must be submitted by December 28 2006. The new rules are due to take effect before the end of January 2007, but will be phased in over a period of 24 months for dedicated children’s channels.

Background

Earlier this year Ofcom launched a public consultation - 'Television Advertising of Food and Drink to Children - Options for New Restrictions' - focussed on restricting food advertising to children amid rising consumer concern about childhood obesity and over-consumption of HFSS products. The consultation was launched as a result of the Department of Health's Choosing Health white paper, as the department asked Ofcom to consult on proposals for tightening rules on broadcast advertising, sponsorship and the promotion of food and drink products following the white paper's publication in November 2004.

The consultation proposed a series of alternative restrictions on the advertisement of HFSS products to children under the age of nine. These restrictions included time restrictions for advertising HFSS products, limiting the amount of airtime given to food and drink advertising at peak family viewing times, and a ban on the advertising of all foods to children. Key food and advertising bodies - including the Food Standards Agency, the Food and Drink Federation and the Advertising Association - slammed Ofcom's proposals for not going far enough.

Given the hesitant proposals and long-standing era of self-regulation, Ofcom's recent announcement of measures has shocked many food manufacturers who will now be forced to follow clear written guidelines on what is and isn’t acceptable in television advertising which may be seen by children.

Subverting the new regulations

According to the package announced by Ofcom, the HFSS products falling under the advertising ban will be assessed according to the Food Standards Agency's Nutrient Profiling Scheme. The scheme has been severely criticised with regard to the way it classifies food, often classifying what has traditionally been regarded as nutritious food, such as milk, cheese and cereals, as less healthy because of a high fat, sugar or salt. Thus, food producers may reformulate HFSS food products to fit the scheme in order to go on advertising their products on television without restriction.

The definition of 'programmes of particular appeal to under 16s' is also expected to stir debate. At present, it is proposed that the definition be based on indexing so that, if the proportion of the audience under 16 is more than 20% higher than the proportion of under 16s in the UK population as a whole, the programme is described as being one of appeal to under 16s. The attack against the index measure is likely to be based on two aspects. First, the definition is arbitrary. Second, programmes which approach an index which would indicate appeal to under 16s may still be interrupted by junk food advertising until they cross the 20% threshold and therefore the index measure lacks force.

The European debate

Non-government organisation the European Public Health Alliance has urged for a 6am to 9pm watershed on audiovisual commercial communications of HFSS products to be implemented in a new article of the EU Television without Frontiers Directive 1989. This follows the European Commission’s decision to modernise the directive to keep pace with rapid technological and market developments in Europe's audiovisual sector. The revised directive, as proposed by the commission, does not incorporate significant changes to reflect the demands of the European Public Health Alliance, but does state that films, children's programmes, current affairs programmes and news must not be interrupted by advertising of any sort more than once every 35 minutes. The revised directive also proposes to ban excessively intrusive and undisclosed product placement such as that sometimes seen in children’s programmes. In addition, the revised directive may apply to certain internet-based services.

An EU directive normally allows member states to decide on the exact rules to be adopted, so long as the national legislation enacted adequately complies with the requirements of the directive. In short, the United Kingdom may be forced to enact similar legislation.

Changes beyond television: the non-broadcast media

The protection of children is central to Ofcom’s current proposals. Groups like the Campaign for Commercial-Free Childhood address issues beyond the limited scope of television advertising, calling for prohibitions on marketing junk food to children through websites, toy giveaways, mobile phone 'text to win' competitions and contests such as token collecting.

In a recent watchdog article, it was reported that the International Obesity Task Force claims that the marketing of junk food on the Internet is unregulated and food companies are getting around restrictions by using its facilities (including flash-animated games and online chat rooms) as a primary means of communication.

In the United Kingdom, online food advertisers must comply with layers of legislation, including generic laws, such as the Trade Descriptions Act, the Consumer Protection Act and the UK Food Regulations. UK food advertisers must also deal with a regime of self-regulation. The British Code of Advertising, Sales Promotion and Direct Marketing published by the Advertising Standards Agency is a self-regulation code which applies to advertisements that are online as well as in magazines, emails and text transmissions. The code provides broad rules with regard to marketing to children in the non-broadcast media.

Following Ofcom's recent decision, it seems inevitable that the food industry and food advertisers will face a further regulatory burden, but this time in cyberspace.

The impact on the food industry

The common question raised by the food industry is: how will Ofcom’s regulatory changes affect business? The effect of the changes should not be underestimated. They may result in proportional decreases in product sales and in time further restrictions on food advertising, such as a ban on all food adverts before the 9pm watershed. Food advertisements will continue to be placed elsewhere, such as on the Internet, until greater restrictions perhaps creep in there too.

In addition, food manufacturers may advertise with broadcasters that are licensed in other EU member states but which broadcast in the United Kingdom; in general, such broadcasters are not bound by UK rules.

Summary

It seems that in order to extend the lifetime of well-known food personalities and characters, food manufacturers may need to alter the HFSS content appropriately, advertise during programmes bobbing below the 20% mark or cross the water to advertise with European broadcasters.

Therefore, the changes made to junk food advertising do not seem to be as devastating as they could be; an all-out ban, for example, may have proved too damaging on both the food and broadcasting industry. However, it is almost certain that after formal regulation comes into effect, the rules may go on to become even tighter and encroach on the non-broadcasting field. The government and Ofcom's assessment of the effect of these changes into 2008 will make for interesting reading.

Adele Pulisciano is a trainee solicitor in the commercial intellectual property department of Eversheds, Birmingham office. 

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