knowledge 13 July 2021 |

New ASAI Rules on Advertising of HFSS Products

Background

In 2018, the Department of Health published voluntary codes of practice (the “Codes of Practice”), aimed at limiting the promotion, marketing and sponsorship of HFSS foods and non-alcoholic drinks in non-broadcast media (including digital media) and in commercial sponsorship and retail product placement. The Codes of Practice were aimed at ensuring that children are not exposed to inappropriate marketing or advertising associated with HFSS food and drink products,¹ and that healthier food choices are actively promoted. However, to date no monitoring body has been established and no guidance has been published for advertisers in respect of the Codes by the Department.

The Broadcasting Authority of Ireland (“BAI”) currently imposes rules on the marketing of HFSS foods to children in broadcast media in accordance with its statutory obligations, as contained in its Children’s Commercial Communications Code from 2013 (the “BAI Code”).

On 2 June 2021, the ASAI gave submissions on the general scheme of the Online Safety and Media Regulation Bill 2020 to the Joint Committee on Tourism, Culture, Arts, Sport and Media (the “Joint Committee”). The ASAI’s chief executive recognised concerns around the advertising of HFSS foods to children, particularly online given the increasing use of algorithms and artificial intelligence, in respect of which there are no specific rules for non-broadcast media. The ASAI committed to introducing new rules into the ASAI Code aimed at limiting the digital marketing of HFSS foods to children by the end of June 2021.

The revised ASAI Code

The new rules on HFSS products to be incorporated into the ASAI Code include the following:

• Marketing communications for HFSS products should not be directed or targeted at children under 15 through the selection of media or the context in which they appear.

• No medium can be used to advertise HFSS products if more than 50% of its audience is under 15 years of age.

• New restrictions apply to the percentage of HFSS marketing communications that can be carried by each media format. For example, no more than 33% of available outdoor space can carry HFSS product marketing communications, whilst for cinema, digital and print media, no more than 25% of the available space can carry HFSS product marketing communications.

• New rules apply to sponsorship activities involving HFSS products and the use of licensed characters in marketing communications, in non-broadcast media for HFSS food products, that are targeted at children.

• Locations primarily used by children, such as schools, crèches, youth centres and playgrounds, will be prohibited from running any form of marketing communication for HFSS foods.

These new rules are in addition to the existing provisions in the ASAI Code which stipulate that marketing communications should not denigrate a healthy lifestyle, should not encourage unhealthy eating or drinking habits and should not encourage consumption to take advantage of a promotional offer.

What’s next?

The new rules will come into effect on 1 December 2021. The ASAI has indicated that it will take a practical and staged approach to the implementation of the new rules and will proactively monitor this area. For the first six months after the effective date, the ASAI will add any complaints that may be received into its monitoring structure, using them as a form of intelligence gathering.

The BAI will be subsumed into the new Media Commission that will be established under the Bill once enacted, and it has been indicated in the Joint Committee session that the Children’s Commercial Communications Code will be reviewed thereafter to take account of developments in broadcast media marketing of HFSS food and drink.