PromoVeritas on the HFSS ad bans: How the industry has responded

Jorja Knight, Head of Legal at PromoVeritas recaps some of the key learnings from our recent HFSS webinar all about the impending legislation for advertising foods that are high in fat, salt and sugar.

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Last week our webinar with ISBA and Kellogg’s raised a raft of issues surrounding the changes to HFSS product advertising. It’s important to repeat some of the main points that were raised:

Background to HFSS policy

Britain has one of the highest obesity rates in Europe and successive governments have suggested many strategies to tackle it. Since the pandemic, the government’s lack of direction changed dramatically due to the clear link between obesity and mortality rates for COVID-19 and it became critical once overweight Prime Minister Boris Johnson became seriously ill with the virus. This led ministers to launch a fresh HFSS consultation in December last year which resulted in the recommendation of the TV watershed and total online ban for HFSS products.

Brands and advertisers have long supported the need for a healthier society but believe that a more holistic solution is required which includes better food education, higher activity levels and tackling poverty. Their response to the consultation that highlighted problems with the ministers’ evidence and challenged the basis of their assumptions about the number of ads being seen, the efficacy of their proposed solution and the effect on adult’s freedom of choice.

The government outcome ignored this and instead announced plans to introduce a 9pm watershed ad ban for HFSS products as well as restrictions for paid-for HFSS advertising online. Additional restrictions to the price and locations of HFSS product promotions have also been announced. Fortunately there are exemptions that include brand-only advertising, owned media such as social media or websites, SMEs, B2B communications, transactional information and audio-only media.

What does the advertising industry think?

The industry accepts that fighting obesity must include advertising restrictions but sees this as part of a holistic solution that also addresses levels of activity and deprivation. They question why further restrictions are needed when the UK’s existing rules on HFSS advertising are among the strictest in the world and the Advertising Standards Authority’s own research shows that they are successful in preventing such adverts from being served to younger audiences.

Phil Smith, Director General of ISBA has stated that “There is no evidence that what Ministers are proposing will have any meaningful impact on children’s health…at a moment which calls for economic recovery and serious, evidence-based policy to improve children’s health, it seems that government has plumped for headlines over meaningful reform.”

In response to the consultation the advertising trade bodies set out an alternative pathway to reduce HFSS adverts online to children. Based on targeting technology they proposed a ban on all paid-for adverts targeting children; applying targeting filters to avoid children’s media; using audience targeting tools; evaluating campaigns once they have run to improve future targeting. This system would be better at reducing children’s exposure to HFSS ads, be less of an infringement on our freedoms as adults, as well as avoiding the need for the expensive of a further regulator.

Next steps

The Health and Care Bill is slowly going through Parliament and is still in the Committee stage. It will inevitably run into controversy because it includes changes to the NHS. It is anticipated that the HFSS measures probably won’t be scrutinised till late October and will then have further discussion in the House of Commons before the Bill moves to the Lords for even further scrutiny.

Meanwhile the advertising industry and trade lobbies will still be making the case for their alternative system. They are also determined that the final Bill will give clear direction about what the brand exemption entails and also that Ministers will consult before moving to a new Nutrient Profiling Model.

And even once the Bill is passed the regulators Ofcom and CAP will need to spend time determining the rule changes which does not leave much time for brands and retailers to plan for their correct implementation which means they should be preparing already.

What can you plan for now?

  • Familiarise yourself with the new rules. Ask for our HFSS Handout.
  • Maximise your advertising of HFSS products now
  • Focusing on Halloween, Christmas and Easter events
  • Grow your online and social media presence
  • Begin to gather valuable customer data compliantly through prize draws
  • Fast-track reformulation if possible
  • Make a Bill Committee submission

What can you plan for the future?

  • Masterbrand advertising, including corporate responsibility
  • Audio ads – such as radio, music streaming platforms or podcasts
  • Adding ‘theatre’ to in-aisle and other high footfall areas
  • On-pack promotions are safe
  • Native social media promotions are a safe way to go viral

How PromoVeritas can help your team

  1. Run it Right: Our legal team offer latest advice on HFSS campaigns
  2. Grow awareness: We can help you run effective and compliant promotions on all social media platforms
  3. Avoid rule-breakers: Influencers will be restricted, so stick to the rules with our suite of influencer legal services
  4. Stand-out in the aisle: We run innovative and outstanding on-pack promotions from start to finish
  5. Connect via email: We can run simple prize draws to gather legitimate customer data
  6. Create free PR opportunities: Use Willy-Wonka style promotions to create a buzz
  7. Consider overseas: Run HFSS campaigns overseas where it is less risky with our legal support but remember that websites operating from the UK must still follow the new rules.

These changes are planned to come into effect in October 2022 for price and location promotions and 1st January 2023 for the media ban – although we cannot predict the final outcome it is essential that you plan ahead for a new outlook for HFSS advertising immediately but with a positive focus on what can be done. For a free handout or to find out more contact our team at info@promoveritas.com.

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