HFSS product advertising remains a hot topic, which is not surprising given the increasing political pressure to respond to public concerns about childhood obesity.

Such ads are subject to media placement and content restrictions under the UK’s Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing ('CAP Code') and Code of Broadcast Advertising ('BCAP Code'). In line with the Advertising Standards Authority’s ('ASA') wider objectives, these are intended to protect children and limit their exposure to age-restricted ads in certain sectors, including the food sector.

The government is now consulting on further restrictions on HFSS product advertising, including the introduction of watershed periods. This consultation is separate to the CAP and BCAP reviews on HFSS product advertising, the outcomes of which are still pending.

Current rules on HFSS product advertising

Under the current advertising rules, ads for HFSS products must not be directed at children (under-16s) through the selection of media or context in which they appear. Additionally, no medium should be used to advertise HFSS products where more than 25 per cent of the audience are under 16.

The rules apply to both direct promotions of HFSS products (e.g. where an ad features the product) and indirect promotions (e.g. where branding is used that is synonymous with a specific HFSS product).

New statutory controls proposed on HFSS product ads

Despite existing restrictions, there is a concern that children still see a significant level of HFSS product advertising in the media, which can shape their food choices and over time, lead to obesity. The government’s consultation paper highlights research showing that children’s viewing time peaks between 6.00pm to 9.00pm when TV shows broadcast are likely to be ‘family’ programmes such as Great British Bake Off and Saturday Night Takeaway. Therefore, most of the shows watched by children during these peak times are not likely to be 'children’s programmes' (i.e. aimed at children) and so may not be subject to the existing ASA restrictions.

In addition, children’s increasing use of online media means a significant proportion of children’s exposure to HFSS product advertising may arise in content that does not exceed the 25 per cent audience threshold, but is nonetheless seen by a high number of children on a frequent basis.

The further restrictions proposed in the government’s consultation include:

  1. Banning HFSS product advertising on broadcast TV and online between 5:30am – 9pm.
  2. Introducing a tiered approach, which allows healthier products to be advertised on broadcast TV outside of the watershed period but restricts others, depending on its Nutrient Profiling Model (NPM) score. The intention is that this would incentivise brands to reformulate their products to be healthier.
  3. Strengthening the current online advertising restrictions by, for example, requiring that children make up no more than 10 per cent of the audience (rather than the present 25 per cent) and prescribing specific sources of evidence that advertisers must use to prove they have excluded under-16s.
  4. Using a combination of a watershed and additional targeted restrictions (see above at 3) for online advertising, depending on the type of advertising and platform.

The consultation is due to close on 10 June 2019. The proposed 9.00pm watershed is likely to be a contentious topic and the food and advertising industries have previously voiced their objections on earlier calls for a watershed. The view taken by the industry generally is that such a restriction would be ineffective and a disproportionate response.

On a practical level, it is also difficult to see how a watershed would apply for certain types of online advertising (e.g. viral and influencer marketing). It is also clear that any action to reduce children’s exposure to HFSS product advertising must reflect the new media landscape, including the prevalence of non-broadcast content (e.g. on demand TV and video sharing platforms). Brands and advertisers will need to watch this space to see what further restrictions (if any) will be imposed on HFSS product ads.