On 3 March 2017, the New Zealand Advertising Standards Authority (the ASA) announced a new code to cover all advertising to children and young people. The Code recognises the need to protect children from information and material injurious to their well-being as championed by the United Nation’s Convention on the Rights of the Child. The Code’s Principles and Rules apply to all advertisements that target children or young people. In particular, the Code outlines rules specific to Food and Beverage advertisements including restrictions on occasional food and beverage advertising.
The Code applies to all advertisements that “target” children or young people, defined by the Code as the relationship between the nature and intended purpose of the product or service being promoted, the presentation of the advertisement content and the expected average audience. The context of the advertisement is also an important consideration and the Complaints Board will have regard to all relevant matters surrounding the advertisement. The Code does not apply to product packaging, product news, reviews, editorial and broadcast programmes.
The Food and Beverage Industry – Occasional Food and Beverage Products
As noted above, advertisements for occasional food or beverage products must not target children or be placed in any media where children are likely to be a significant proportion of the expected average audience. This restriction includes sponsorship advertisements.
“Occasional food and beverage products” are defined by the Code as products which are high in fat, salt or sugar as classified by the Food and Beverage Classification System as being intended for occasional consumption or as classified by the Health Star Rating System with less than 3.5 stars.
The rules and guidance notes around occasional food and beverage products include:
- Advertisers need to demonstrate care is taken when evaluating the average audience composition and whether children will be a significant proportion of the audience in light of child viewing time zones, content with appeal to children and locations where children gather.
- A duty of care must be applied to occasional food and beverage product advertising and advertisements must not state or imply such products are suitable for frequent consumption and where possible, alternative healthier options should be promoted.
- The quantity of the good in the advertisement should not exceed recommended portion sizes for the person of the age depicted (as found in the Ministry of Health Guidelines for Healthy Children and Young People).
- Advertisements for occasional food and beverage products must avoid creating a sense of urgency or encouraging the purchase of an excessive quantity.
- Advertisements must not mislead as to the potential physical, social or mental health benefits from consumption of the product, including misleading as to the nutritional value.
In terms of sponsorship advertisements, the Code states companies can sponsor teams, events and other activities, however, sponsorship advertisements must not show an occasional food and beverage product, such product’s packaging or depict consumption of the product. The Code suggests that a clear sponsorship association should be made and the focus of the advertisement should be tied to the activity, event or team.
Ensuring your brands are Code compliant
It’s important for businesses to review existing and future planned advertising to ensure compliance with the new Code. The Food and Beverage Classification System the Code refers to contains some unsurprising definitions of occasional foods such as soft drinks, Danish pastries, croissants, potato chips and corn chips. Some occasional foods may be surprising, however, including dried banana chips, garlic bread and salami. It is also important to note that there are many foods listed which can move from every day or sometimes food categories to “occasional foods” when consumed in particular size portions.
Businesses need be conscious of not breaching the Code to avoid negative brand associations. Baldwins frequently reviews brand ownerss proposed marketing materials before launch to ensure they are compliant with relevant Advertising Standard Authority rules. We are happy to assist in navigating and interpreting the new Code to ensure compliance before its implementation date. We can also review sponsorship arrangements and brand usage within this context. In reviewing your marketing material, we also ensure brands and other intellectual property are appropriately protected in the relevant markets.
The Code comes into force on 3 July 2017 and all advertising to children and young people must comply with the Code three months later from 2 October 2017. The Advertising Standards Authority is providing training to advertisers and media agencies to support compliance with the Code by this time. Baldwins is also able to help with any queries you may have about compliance with the Code, please contact us today for a discussion.
This article was written with assistance from Vicky Mullins.
This article is intended to summarise potentially complicated legal issues, and is not intended to be a substitute for individual legal advice. If you would like further information, please contact a Baldwins representative.