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New Rules For Food Advertising To Children In The Uk
Author: Brinsley Dresden, Lewis Silkin

Introduction
In April 2007, the advertising regulators for both broadcast and non-broadcast advertising in the United Kingdom completed the process of introducing new rules for food advertising to children.

The Office of Communications (Ofcom) acted first by introducing new rules for both the content of the food advertising and also the scheduling of advertising for foods high in fat, salt or sugar (“HFSS” foods). Since then, the Committee of Advertising Practice (“CAP”), the Self-Regulatory Organisation which governs non-broadcast advertising in the UK, has brought out rules to govern the content of food advertising to children in non-broadcast media, such as the print, press, poster and cinema. The content rules for broadcast and non-broadcast media are very similar, although CAP does not differentiate between HFSS foods and other foods, and has not adopted quantitative restrictions.

These moves follow research conducted by Ofcom, at the prompting of the Government, into the role that television advertising plays in influencing children’s consumption of HFSS food.  Ofcom concluded that television advertising has a modest direct effect on children’s choices, together with a larger but unquantifiable indirect effect on their preferences, consumption and behaviour.  Ofcom also recognised that as there are multiple factors that cause childhood obesity, a total ban on food advertising on television would not be effective in combating the problem, nor would it be a proportionate response.

What is an HFSS food?
One of the main criticisms of the new regime is that Ofcom has chosen to adopt the Nutrient Profiling (“NP”) scheme launched by the Foods Standards Agency to define HFSS foods.  Many commentators have expressed concern about the reliability of the NP scheme. They point to specific examples of foods intended to be consumed in small quantities which may be high in salt or fat for example, but which can form part of a healthy, balanced diet for a child, such as cheese, raisins and breakfast cereals. CAP has expressly stated that the NP system has “serious flaws”, which is a surprisingly unsubtle criticism of a key plank of the equivalent regime adopted by the broadcast advertising regulators.

In order to decide whether a particular food is subject to the HFSS regulations, the Broadcast Advertising Clearance Centre has said that advertisers will have to produce a “nutritional profiles certificate”.  This involves giving a score to a food depending on the amount of calories, saturated fat, sugar and salt per 100g, as well as the amount of fibre and protein.

What do the new content rules require?
The new rules for television advertising came into effect on 22nd February 2007 and any new campaigns will have to comply with those rules.  Transitional provisions allow existing campaigns or campaigns in their final stages of creative execution at that time to be broadcast until 30th June 2007. As from 1st July, the new content rules will apply to both all television advertisements for HFSS foods and all non-broadcast advertisements. 

The content rules apply to all advertising of food and drink products to all children at any time of day.  They also include rules which are directed specifically to pre-school or primary school children (i.e. those aged 10 or under). 

• Diet and Lifestyle - Advertisements must avoid anything that is likely to encourage poor nutritional habits or an unhealthy lifestyle in children.  This means that food should only be shown being eaten in moderation and without excessive consumption.  Frequent eating between meals or immediately before going to bed should be avoided.  Encouraging attitudes associated with poor diet, such as a dislike of green vegetables, should also be avoided. 
  
  Advertisements must also avoid encouraging excessive consumption. For example, portion sizes should be shown responsibly and with relevance to the scene depicted.  Advertisements should also avoid suggesting that an inactive or sedentary lifestyle is preferable to physical activity. 
  
  
• Pressure to Purchase - Children should not be encouraged to ask their parents to buy food or drink, nor to use pester power.  Advertisements should not create feelings that are either negative, such as disloyalty or inferiority, or positive, such as self confidence or popularity, by consuming a product or service.  If the advertisement contains reference to a price, this must not be minimised by the use of words such as “only” or “just”.
  
  
• Promotional Offers - Promotional offers must be used responsibly.  In addition, they cannot be used in adverts for HFSS products targeted directly at pre-school or primary school children.  They must avoid creating a sense of urgency or encourage consumption of excessive quantities.  If the “premium” which is the subject of the promotion can also be purchased for cash, that should be made clear.  Closing dates must be sufficiently long after the launch of the promotion to avoid creating a sense of urgency.
   
• Use of licensed characters and celebrities - Although licensed characters and celebrities who are popular with the children can be used in food advertising, this must be done responsibly. Furthermore, this technique is prohibited in advertisements for HFSS products targeted at pre-school or primary school children.
  
  Licensed characters mean “borrowed equities” that have no historical association with the product.  In practice, this is likely to apply to characters from television programmes or feature films made for children, such as Scooby Doo or Shrek.  It does not apply to “advertiser – created equity brand characters” i.e. puppets, people characters created by the advertiser, such as Tony the Tiger of Kellogg’s Frosties fame.
  
  
• Nutritional and Health Claims - There are also content rules applicable to all advertising for food and dietary supplements to both adults and children.  Nutritional claims must not be misleading and should be relevant to the groups addressed by the advertisements.  No nutritional or health claim may be used in HFSS advertising directed at pre-school or primary school children.  No advertisement can encourage excessive consumption of any food and must not disparage good dietary practice or good healthcare practice. 
  Advertisements for dietary supplements cannot suggest that they are necessary for the average person in order to augment their diet and must clearly establish the groups of people likely to benefit from them.

Scheduling restrictions
The scheduling restrictions for television advertising are being brought into force in two stages with a third separate arrangement for children’s channels.

• Programming for the Under 9’s: From 1st April 2007
  From 1st April 2007, HFSS advertisements will not be permitted in or around programmes made for children or which are likely to be of appeal to children aged under 9.  
  
  
• Programming for all children under 16: From 1st January 2008
  The prohibition will then be extended to programmes that are likely appeal to children aged under 16 from 1st January 2008.  This minor derogation has been implemented because when Ofcom originally consulted on its proposals they addressed restrictions to the under 9’s rather than the under 16’s.
  

Subsequently however, Ofcom decided that although primary school children were the most vulnerable, this did not mean that rules should not also be applied to older children. Ofcom also believes that there is strong evidence that exposure to television advertising is associated with obesity in children in their pre-school, primary school and teenage years. Although media literacy may increase with age, there is still a modest direct effect on the food preferences of older children.  It was also felt that young children are influenced by their older siblings, who also have more spending power than younger children.

• Dedicated Children’s Channels: Phased from 1st April 2007 to 1st January 2009
  Specialist children’s channels will be able to phase in through restrictions.  Starting from 1st April 2007, they will have to reduce the amount of HFSS advertising that they show, to 75% of 2005 levels, reducing to 50% on 1st January 2008 with a complete removal by 1st January 2009. 

What programmes are “of particular appeal to under 16’s”?
This question is answered using the statistical analysis of “indexing” which produces a programme’s “Conversion Index”.  If the programme has an index of 120, this will mean that the proportion of children aged between 4 and 15 watching a particular programme is more than 20% higher than the proportion of the general population.  The programme will therefore be classified as one which is of particular appeal to the under 16’s.  This technique is well established and broadcasters have historical scheduling data that can be used for defining these programmes.

What happens next?
In late 2007, the Government is due to review the extent of change to the nature and balance of food advertising.  Ofcom already predicts that the dedicated children’s channels are likely to lose between £4.6 and £5.9 million per year, but that a ban on all HFSS advertising before 9pm would have resulted in the loss of revenue of £250 million per year.  This has been rejected so far, on the basis that it would be untargeted and disproportionate with damaging effects on the quality of programming.

Following the Government review, in 2008 the FSA is due to review the operation of its nutrient profiling model once it has been in place for a full year.  Finally, at the end of 2008, Ofcom is to review whether the rules are having the intended effect reducing the amount of HFSS advertising seen by children (rather than the impact of the new rules on obesity levels) and also whether there have been any unintended consequences of the new rules such as a switch to brand advertising which is not currently prohibited.

Unfortunately, it is perfectly possible that while the ban will have no discernible effect on the rate of obesity among children, to which advertising is only a small contributor, it will have a seriously detrimental effect on the production of  high quality programming for children.