The issues faced by Kinder recently serve as a reminder to the advertising industry that the Advertising Standards Authority will enforce the relevant regulations when it comes to marketing HFFS products.

There are significant amounts of regulations which govern how advertising campaigns can be run, particularly in relation to the food and drink industry.

What happened?

Kinder, a subsidiary of Ferrero Ltd, were caught up in a backlash from the Advertising Standards Authority (ASA) as a result of a series of websites, an App and a YouTube channel which was considered to be promoting HFSS products directly to children. The issue resulted from rules set by the Committee of Advertising Practice (CAP) which dictates that high fat, salt or sugar products should not be targeted at individuals under 16 years old.

It was concluded by the ASA that the nature of the advertising across the various platforms, using cartoons, licenced characters and interactive games aimed at children, was sufficient to be deemed as being targeted directly towards children.

As such, the ASA requested that the adverts and games in question were immediately taken down and “must not appear again” in that form.

What can businesses learn from this?

The CAP Code is strict on any advertising which is directed towards children, particularly when it concerns health, so much so that Kinder was deemed to have breached all of the following:

The first point is the “25% rule”. This provides that HFSS products should not be advertised through any medium where the audience is comprised of more than 25% of individuals under the age of 16. The CAP Code specifically states that such adverts should not be directed at individuals under 16.

The second point is that promotional offers in marketing which, through the nature of its content, are directed towards children of primary school age, or younger, must not contain a promotional offer. The Kinder website fell foul of this by including competitions and prizes, which shows that the scope of a ‘promotional offer’ may be quite broad.

Finally, there is a restriction on the use of popular characters to promote products, particularly where they appeal to children of primary school age or younger. Again, the CAP Code offers some specificity, providing that such licenced characters and celebrities must be used with a “due sense of responsibility”. In contrast, characters created solely to advertise products can be used.

What this means for businesses advertising HFSS products

As far as precedent, it is the ASA setting down a big marker for the advertising industry. The judgement on this case has significant implications for advertising and really highlights how aware companies have to be when creating their marketing campaigns, in relation to food products.

When starting a new campaign, it is crucial to ensure that you are compliant with the CAP Code and follow any guidance set down by the ASA. If not, as shown by the Kinder case, you are likely to be spending a lot of money to rectify your lack of compliance. Otherwise you will be left with useless adverts.

If you have any questions regarding advertising or would like some advice regarding advertising campaigns and how to be compliant with the regulations set out by the ASA, please do not hesitate to contact Jessica O’Riordan who is a solicitor in our IP/IT team on 01392 210700 or ip.it@stephens-scown.co.uk.