HFSS newsletter | February 2024

Despite the delay in implementing marketing and advertising restrictions for products high in fat, salt or sugar (HFSS), there have been some important developments in relation to HFSS.

ASA takes action against ads targeting HFSS products at children

The Advertising Standards Authority (ASA) recently ruled against Burger King regarding its direct email marketing which advertised 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 their "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 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.

Osborne Clarke comment

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 very 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.

ASA appointed as regulator for HFSS advertising restrictions

As expected, the ASA has been appointed as the regulator to deal with issues arising under the new HFSS advertising restrictions when these come into force. Ofcom has designated it as the regulatory authority for online advertising of HFSS food and drink.

The ASA is responsible for enforcing the relevant HFSS advertising restrictions requirements of the Communications Act 2003, which were introduced by the Health and Care Act, as well as creating guidance. Ofcom can revoke the designation if the ASA fails to fulfil its obligations or no longer meets the requirements.

UK government to introduce improvement notices for breach of health and nutrition claims

There is a new lighter-touch enforcement regime for breach of the health nutrition claims regulation which is being brought in as part of the government's post-Brexit "smarter regulation" initiative.

Following its consultation on proposed changes to the nutrition labelling, composition and standards retained EU law, the UK government confirmed in its response that it will be introducing legislation to enable improvement notices for breach of health and nutrition claims.

This new regime will mean enforcement authorities can use an alternative route to criminal prosecution for non-compliance which the government states will "facilitate a faster, cheaper and more proportionate method for ensuring compliance." Businesses should be alive to this upcoming change and the steps needed to achieve compliance, as this new regime could mean an increase in enforcement against non-compliant health and nutritional claims.

The government intends to put forward legislation early this year with the aim being that the new regime would come into force in October 2024. A three-month notice period will be given between legislating and implementation.