Restrictions on advertisements in Ireland for high in fat, salt or sugar ("HFSS ") food and drink products will come into effect on 2 September 2013. The Broadcasting Authority of Ireland (“BAI”) recently published revised versions of its General and Children’s Commercial Communications Codes, which include prohibitions on advertisements for HFSS products during children’s programmes and restrictions on the volume of advertisements for HFSS products that may be broadcast in Ireland. The new regime in Ireland regarding advertisements for HFSS products will be similar to that in the UK, subject to certain notable exceptions.
The new versions of the BAI Codes are substantively the same as those which were included in a consultation document published by the BAI in March 2012. Under the new Children’s Commercial Communications Code, from 2 September 2013 ‘commercial communications’ (which covers a broad range of promotional communications, including advertisements, sponsorship and product placement) for HFSS products will not be permitted during children’s programmes. Children’s programmes are defined as programmes which are commonly referred to as such and/or which have an audience profile of which over 50% are under 18 years of age.
There will also be restrictions on the content of ‘children’s commercial communications’ relating to HFSS products. Children’s commercial communications are those which promote products that are of particular interest to children and/or are broadcast during children’s programmes. As in the UK, children’s commercial communications for HFSS products may not include: (a) licensed characters; (b) health and nutritional claims; or (c) promotional offers. The restrictions regarding health and nutritional claims and promotional offers will only apply to commercial communications that are of particular interest to children under the age of 13. The restriction regarding the use of licensed characters, however, will apply to commercial communications that are of particular interest to children under the age of 18. This may be contrasted with the UK, where all of these restrictions apply only to advertisements targeted at pre-school or primary school children.
The restriction regarding the use of licensed characters in children’s commercial communications relating to HFSS products is subject to a limited exception for ‘equity brand characters’ ie characters originally designed for marketing purposes. ‘Tony the Tiger’ and ‘Snap, Crackle and Pop’ are listed as examples of equity brand characters who may continue to be used in children’s commercial communications relating to HFSS products.
Under the new versions of the Codes, HFSS products are those which are assessed as being high in fat, salt or sugar in accordance with the nutrient profiling system developed by the UK Food Standards Agency. Although the BAI has decided to follow the UK system, following intensive lobbying and upon the recommendation of the Department of Health, it has included an exemption for ‘cheese products’. This does not extend, however, to products where cheese is an ingredient. Limited details are provided as to what will, or will not, constitute a ‘cheese product’ for these purposes. Cheddar and brie are specifically mentioned as examples of cheese products, whilst pizzas and sandwiches are identified as products which will not be exempt, since cheese is merely an ingredient in these products. The status of processed cheese products, for example, is unclear. Children’s commercial communications’ for ‘cheese products’ must carry an on-screen message indicating the recommended daily allowance of cheese for children.
Guidance notes in relation to the new Codes provide that, as a matter of practice, broadcasters should require advertisers of food and drink products to provide them with nutrition profile certificates, so that broadcasters can satisfy themselves as to whether a particular product is a HFSS product. On this basis, it would be prudent for producers of food or drink products who intend to advertise them on television or radio in Ireland after 2 September 2013 to prepare such certificates which can be produced to a broadcaster, if required.
In addition to the prohibition and restrictions relating to children, the new General Commercial Communications Code provides for limits on the volume of advertisements for HFSS products that may be broadcast. A broadcaster who is subject to the General Code must ensure that, on any given day, the duration of advertisements for HFSS products that it broadcasts does not exceed 25% of the sold advertising time and that the number of such advertisements does not exceed 25% of the total number of advertisements on that day. These limits, which will come into effect from January 2014, will apply irrespective of whether the advertisements are aimed at children or adults. There are no such limits in the UK.
In the consultation document regarding the advertising of HFSS products that it published in March 2012, the BAI identified various factors to be taken into account in relation to this issue. These included public health interests, commercial interests of food and drink producers and those of Irish broadcasters, who the BAI acknowledge are heavily reliant on advertising revenue. Overall, when compared with the UK regime, the new versions of the Codes place greater emphasis on public health interests. It remains to be seen what impact this will have on the interests of food and drink producers and, in particular, the advertising revenues of Irish broadcasters.