The UK government is consulting on proposals for an outright ban of online advertisements in the UK for foods high in fat, sugar and salt (HFSS) as part of its Obesity Strategy.
In 2019 the government consulted on restricting advertising of HFSS for TV and online. It asked for views on whether to extend current advertising restrictions on broadcast TV and online media, including consulting on watershed restrictions. In July 2020 the government confirmed its intention to introduce a 9pm watershed on TV. It now wishes to go further and is consulting on a total ban.
The government’s research shows children are exposed to over 15 billion adverts for HFSS products online every year. It says that evidence shows (though it is not conclusive) that exposure to HFSS advertising can affect what children eat and when they eat, both in the short term by increasing the amount of food children eat immediately after being exposed to an advert, and by shaping longer-term food preferences from a young age.
The government considers that a total restriction online is necessary to:
- futureproof the policy against changes in children’s media habits;
- account for a lack of transparency and independent data; and
- address potential issues with the way HFSS adverts are targeted away from children online.
The government proposes that the restrictions apply to all online marketing communications that are either intended or likely to come to the attention of UK consumers and which have the effect of promoting identifiable HFSS products, while excluding from scope:
- marketing communications in online media targeted exclusively at business-to-business;
- factual claims about products and services; and
- communications with the principal purpose of facilitating an online sale.
The government says that it will appoint a statutory regulator (it is not clear if this would be Ofcom or a new body) with overall responsibility for the regulation of the restriction, with discretionary powers to take effective action against advertisers who breach the rules, especially for more serious or repeat breaches. It proposes that the day-to-day responsibility for applying the rules, considering complaints, provisioning guidance and training material to industry would remain with the ASA.
It also proposes that advertisers are liable for compliance with a total online HFSS advertising restriction. In addition it wants views on whether other organisations in the online advertising ecosystem should have responsibility for advertising that breaches an online restriction. This would depend on the level of control which organisations had over the advertising that was served on their sites or placed through their ad networks. The government is considering a takedown requirement for advertising that breaches the restriction after it has been brought to the relevant ad networks’ attention.
Breaches would be resolved in line with current ASA policy of responding to individual complaints and promoting voluntary cooperation with the restriction. If this approach failed or advertisers were committing repeated or severe breaches relating to HFSS marketing material, they would face stronger penalties through the statutory backstop (where the ASA refers certain offenders to partner trading standards authorities). The government would envisage that these would include civil sanctions, including the ability to issue fines in defined circumstances and tied to defined metrics.
The government is also asking about the extent to which an online total restriction on HFSS advertising in the UK could be made to apply to online advertising served in the UK, but originating from advertisers or intermediaries based overseas. It also seeks views on whether this restriction may disproportionately affect UK-based companies.
The consultation ends on 22 December 2020.
