The Advertising Standards Authority has recently ruled that an email and paid-for Instagram advertisement put out by the England and Wales Cricket Board and KP Snacks as part of an advertising campaign for "The Hundred" cricket tournament, were in breach of the rules regulating the advertisement of food products that are high in fat, salt and sugar (HFSS products). The ruling will be of particular importance to online advertisers who use platforms such as Instagram, as it sets out how these advertisements should be targeted going forward.
Advertisers will also need to be aware of the Health and Care Act 2022, which recently received Royal Assent and amends the Communications Act 2003 to introduce new statutory controls on the advertising of HFSS products on TV and online. Relevant provisions include a requirement for Ofcom to introduce a 5.30am to 9.00pm watershed for advertising HFSS products on TV and a separate ban on paid-for advertising online of HFSS products (both subject to specific exemptions). These restrictions were originally set to come into force on 1 January 2023. However, the Secretary of State has recently taken the decision to defer the start date for a number of provisions, including the TV watershed, until 1 January 2024.
The ASA reviewed a total of eight advertisements from the campaign, following complaints from Sustain's Children's Food Campaign and Food Active. The ads included:
- an email containing various cartoon images promoting a giveaway competition which contained logos for "The Hundred" and McCoys and stated "We’ve teamed up with McCoy’s, Official Team Partner of the Manchester Originals, to offer you the opportunity to claim a free bat and ball to celebrate The Hundred"
- a website on which the giveaway was hosted, displaying logos of The Hundred, KP Snacks, Hula Hoops, Tyrrells, Butterkist, Pop Chips, Skips, Pom Bear, and McCoy’s. A button on the website labelled "MORE" led to a page where consumers could watch videos of cricket players, in kit branded with the logos of different KP Snacks products
- posts on the Instagram accounts of Pom Bear UK, McCoy's and Butterkist UK, each with an image of their respective product and promoting the competition
- on Instagram, three paid-for versions of the ads set out at (3).
The complainants contended that the ads featured HFSS products and were also directed at children through the selection of media or context in which they appeared.
The ASA upheld the complaint in relation to the email advertisement and one of the paid-for Instagram advertisements. It dismissed the complaint in relation to the other advertisements that were the subject of the complaint.
The ASA referred to the Committee of Advertising Practice Code rule 15.18 on HFSS Product Ad Placement. This rule requires that "HFSS product ads must not be directed at people under 16 through the selection of media or the context in which they appear. No medium should be used to advertise HFSS products if more than 25% of its audience is under 16 years of age".
All of the advertisements were found to fall under the definition of HFSS product ads for the purposes of the Code, as they variously promoted HFSS products such as Hula Hoops, Butterkist, Pom Bear and McCoy's.
- The email advertisement
The email advertisement contravened rule 5.18. The advertisement had been sent to individuals who were listed under the "family category". This included individuals who had been identified by data capture as having an under-16 within their household or had previously purchased an under-16 ticket. Further, it was disclosed that 326 of the total emails sent were to email addresses identified as belonging to people aged 16 and under. The email was therefore found to have been directed at children through the selection of media in which it appeared.
- The website
However, the website – linked within the email –hosting a ticket giveaway competition was not in breach of the Code. ECB and KP Snacks said that audience data which could identify the age profile of users was not collected or monitored. However, the giveaway page stated "18+ only", the terms and conditions contained clauses stating the minimum age of entry into the giveaway was 18 and there was a subsequent box to tick, indicating agreement with this age requirement in order to enter the competition.
The ASA found that the language used on the website and its overall presentation was not specifically aimed at consumers under the age of 16. Despite the use of cartoon images, the website was no more appealing to those visitors under 16 as it was to visitors over the age of 16. Further, the ASA deemed it unlikely that over 25% of the visitors to the website were under the age of 16, as parents or individuals over the age of 16 would typically register and participate on behalf of the children (and the number of those that may have reached it via the email above was small).
The Instagram advertisements
The ASA considered the issue of targeted age-restricted ads within the ruling, highlighting that "age-restricted ads on online platforms should not target audiences solely based on age data", due to the widespread misreporting of ages online and use of shared devices. The ASA recommended that, in addition, advertisers should also use "interest-based factors" in order to help remove individuals under the age of 16 from the target audience.
This was particularly important in the differentiation between paid Instagram advertisements by Pom Bear UK, McCoy's and Butterkist UK. While all three ads used age and location data to target specific individuals, only the former two ads included the terms "Parenting" and "Parents" as interest-based factors. The lack of any interest-based targeting for the Butterkist UK advertisement led the ASA to decide that ECB and KP Snacks had not taken sufficient care to ensure that an HFSS product ad was not directed at individuals under 16. The Butterkist UK paid-for Instagram ad was therefore deemed to have breached the Code.
However, the other two paid for Instagram posts, and the three non-paid Instagram posts did not breach the code as they did not use imagery likely to appeal to under-16s and KP Snacks would not have been able to utilise the age restrictions or interest-based targeting available on Instagram for paid-for ads. Further, less than 25% of Pom Bear, McCoy’s and Butterkist’s followers were registered as under 18 on Instagram, and the reach and engagement for each post among those registered as under 18 was well below 25%.