The ASA has had a positive flurry of activity on high fat, salt or sugar (HFSS) food ads, delivering rulings in no less than 4 cases on 8 August. Nicky Strong and Ashley Borthwick, of the law firm Womble Bond Dickinson, look at the key takeaways for brands to consider when developing ads for these types of products.
1. Kellogg's Coco Pops – Brand Characters – a life of their own?
The Obesity Health Alliance (OHA) challenged a TV ad for Coco Pops Granola, screened during a children's TV programme in January 2018, on the basis that it was a HFSS product ad screened during programmes principally directed at or likely to appeal to audiences under 16.
The ad featured the brand character Coco the Monkey, but also focused on the Granola product's food shapes and packaging which were different to the rest of the Coco Pops range. In the ad, Coco introduced the product by saying “Coco Pops Granola, it’s so chocolatey, so crispy, and look at the milk, it’s turning all chocolatey”.
At the time of the ad, there were 5 products in the range, 3 being HFSS and 2 non-HFSS.
Despite the fact that the Granola product was not a HFSS product, the ASA upheld the complaint as being in breach of the BCAP Code. The CAP Advertising Guidance titled “Identifying brand advertising that has the effect of promoting an HFSS product” states that the promotion of HFSS products might occur both directly (where an ad featured an HFSS product) and indirectly through the use of branding that was synonymous with a specific HFSS product.
In this case, the ASA's conclusion was that many adults and children were likely to strongly associate the Coco Pops brand and Coco the Monkey with Coco Pops original cereal. At the time of the ad, the original cereal was a HFSS product and the Coco Pops range mainly a HFSS product range. Viewers were also likely to link the phrase that the milk was “turning all chocolatey” with Coco Pops original cereal, particularly when combined with the use of the brand character, Coco, in both the ad and on the product packaging, the recognisable Coco Pops ‘logo’ tune and the bright yellow packaging colour which was used across the whole range.
The ASA concluded that as the Coco Pops branding was significantly more prominent than the references to the granola product, the focus of the ad was on the Coco Pops branding rather than specifically on that product. The ad therefore had the effect of promoting a HFSS product and HFSS product range through the use of branding and therefore the rules relating to the targeting of HFSS product ads applied.
2. McDonald's Happy Meals – a happier outcome:
Similar issues were explored in this case, which involved a Video on Demand ad for McDonald's Happy Meals, seen between episodes of Peppa Pig, and which featured the Pokemon character Pikachu. This focused on the introduction of pineapple into the Happy Meal, with the end of the ad including voice-over text “Luckily there’s enough for everyone. You too can enjoy some delicious pineapple, now at McDonald’s. Some fun, some food: it’s all inside this Happy Meal”, accompanied by a shot of a blue Pokémon-branded Happy Meal box, a toy Pikachu character and trading card, a bottle of water, a portion of chicken nuggets, and a bag of pineapple.
McDonalds successfully argued that the meal shown was not a HFSS product, as all 3 items shown were non HFSS foods and that the Happy Meal brand was not a HFSS brand. At the time the complainant saw the ad, the full Happy Meal menu featured 22 food and drink items, comprising five mains, three sides, and 14 drinks. Of the 22 items, 16 were non-HFSS and the six items that were HFSS were one main and five cold drinks. The ASA concluded that the Happy Meal was, overall, a non-HFSS product combination, noting that the majority of each of the categories of mains, sides and drinks sold in Happy Meals were non-HFSS items, that over half of Happy Meals sold did not include any HFSS products, and that over three-quarters of all items purchased as part of a Happy Meal in 2017 were non-HFSS. As a result the ad was not an HFSS product ad for the purposes of the Code and that the rules relating to HFSS product ads therefore did not apply to it.
Many brands have invested heavily in developing instantly recognisable brand characters and product range features, or in using licensed characters as part of the promotion of their products. The CAP Code requires that HFSS product ads must not be directed at children through the selection of media or the context in which they appear. It also requires that HFSS product ads that are targeted through their content directly at pre-school or primary school children must not include licensed characters popular with children.
If the McDonald's ad had featured a HFSS product, or the Happy Meal menu had contained a higher proportion of HFSS items, it is likely that the complaint would have been upheld – particularly as the ad had been erroneously scheduled to be shown around the Peppa Pig ad.
Given the focus on re-formulating products to contain less sugar, salt and fat, brands should consider whether they wish to alter their branding/packaging for these reformulated products, to more clearly differentiate them from any HFSS products in the same range. However, this needs to be balanced against the risk of diluting the brand and its value. Similar care should be taken when using licensed characters to ensure that the ad could not be seen as promoting HFSS products or brands.
3. KFC – Location is everything
Once again the OHA brought the challenge – this was against a poster ad for KFC's Mars Krushems drink seen in July which was unfortunately positioned on a phone box less than 100 metres from a primary school.
Unsurprisingly, and although KFC and its advertising agency fell on their swords, the ASA upheld the complaint. The product was clearly a HFSS product, and was in breach of the rule that ads must not be directed at children in the context they appear in and no medium should be used where more than 25% of the audience is under 16. The ASA's general approach is that ads in outdoor public spaces are unlikely to breach this 25% rule, but given the short distance from a primary school, in this instance it did.
The agency did explain that the ad's location was an error – the ad had been swapped from one phone box further away for the offending one, and immediately removed the ad once they were aware of the complaint.
4. McDonald's – Timing is key
The 2nd of the 2 McDonald's rulings and again a happier outcome than for KFC, this complaint involved an ad for McDonald’s on the back of a bus ticket. The ad featured a voucher for a £1.99 promotion for a Big Mac, McChicken Sandwich or Filet-O-Fish and medium fries, obviously a HFSS product ad.
Someone had clearly done their homework before choosing this particular medium - the ad in question was displayed on the back of tickets issued on a route on which during school term-time children under 16 made up, on average, 16% of passengers on the route and only 4% in school holidays. Three-quarters of those children used a bus pass and so would not see the ad because they did not purchase a ticket. Details from the bus company concerned confirmed that only 12% of the total passengers on the route were under 16 and actually saw the ad.
As a result, children under 16 comprised less than 25% of the ad's audience, and the ad was therefore not in breach of the CAP Code.
As ever, marketers should ensure that the media and timing of ads has been researched before running HFSS ads. Whilst mistakes and errors do happen, brands should check their own and their ad agencies policies on location of ads, and ensure that they have a fail-safe method of checking the location and likely audience that ad will reach before a HFSS ad goes up.