HFSS product advertisements must not be directed at under-16s through the selection of media or the context in which they appear and no medium with an audience that consists of more than 25% of under-16s should be used to advertise HFSS products.
What does this mean in practice?
In simple terms, this means that HFSS product ads are not permitted to appear in media;
- specifically for under-16s (for example, a children’s magazine or on a website aimed at children); or
- where under-16s make up a significant proportion (more than 25%) of the audience (for example, advertorial content with an influencer that might have broad appeal but also a significant child audience).
What can I do to ensure responsible targeting?
Broadly speaking, there are two main methods for targeting marketing communications and, depending on the circumstances, either, or both, could be used to ensure a marketer’s message reaches the intended audience.
The first is on the basis of the audience composition of the media or specific content around which a marketing communication appears. When targeting an audience – for a magazine, website or a film at the cinema, for example – marketers will need to ensure they have a good picture of the composition of the audience. Robust, specific audience measurement that shows the under-16s audience is below 25% is best. If this is not available, more general data may be acceptable but the less robust the data, the greater the risk.
The second method is through the use of data to include or exclude individuals on the basis of their age, or other relevant criteria. If using data to create an audience – a mailing list for direct or email marketing or account data held by a social networking platform, for example – marketers need to ensure they’ve taken all reasonable steps to exclude under-16s from the list or targeting criteria. On a straight forward level, anyone with a date of birth that means they’re under-16 should be removed. With some online platforms, data held by the media owner may be used to infer ages based on factors like interests or interactions with other users.
How does this apply to content on my website?
Marketers promoting HFSS products on their website should ensure they have a sound understanding of the composition of their audience and, ideally, hold data demonstrating no more than 25% of it consists of under-16s. Marketers should be aware, however, that content which has been specifically created for under-16s is still likely to be problematic, even if it appears on a website with an audience consisting of over 75% adults.
The Advertising Standards Authority (ASA) upheld a complaint about a joint promotion between Cadbury and the National Trust for Scotland, because the material – consisting of an online storybook and online activity pack, available to download from a section of the Cadbury website – had been directed at children. Each of the ads featured Cadbury branding and identifiable Cadbury Easter-themed HFSS products and as such, the ASA considered that they were HFSS product ads. While the website was considered to be directed at adults through its presentation and content, the ASA ruled that the downloadable content – the storybook and activity book – had been targeted at children through the selection of media. The ASA acknowledged that, given the nature of the website content, it was unlikely that over 25% of visitors to the website would be under the age of 16, but considered that the downloadable content was specifically created for children and would be given to them to use, and was therefore directly targeted at children, in breach of rule 15.18 (Mondelez UK Ltd t/a Cadbury, 4 July 2018).
What about social media?
When it comes to ads on social media, as well as taking audience composition-based steps to prevent users who are registered as under 16 from viewing HFSS ads, the ASA is likely to expect marketers to make full use of any additional tools available to them, particularly given it is possible for younger users to misreport their age on social media. For example, interest-based targeting can be used to help ensure ads are targeted at social media users who are over the age of 16.
Where such tools are available, the ASA has ruled that the general 25% consideration in the targeting rule would not apply. As many paid-for social media ads can be (and usually are) targeted at a defined set of users, the ASA does not consider it relevant that less than 25% of the total platform audience is under the age of 16.
Four social media ads for Chewits sweets were considered to have been directed at children, in breach of rule 15.18, because the advertiser had not used any of the tools available to them to target or restrict the audience of the posts. The ads, which appeared on the Chewits Facebook page, featured the brand equity character, “Chewie the Chewitsaurus”, the Chewits logo and claims including “Celebrate your GCSE results with Chewie”, “SEPTEMBER BACK TO SCHOOL…Chewies is ready for a SWEET school year”, “CELEBRATE ROALD DAHL DAY” and “International School Libraries Month”. Given that the ads were easily identifiable as ads for Chewits, an HFSS product, and taking into account the content of the posts, the ASA considered that the advertiser should have used any tools available to them to ensure responsible targeting. For example, restricting the audience of their Facebook page (and therefore their posts) to users registered as aged 16 or over and specifically selecting interest-based factors to target their individual Facebook posts away from the Newsfeeds of those under 16 (Cloetta UK Ltd, 4 July 2018).
Conversely, the ASA considered that social media ads for Walkers crisps, which appeared as paid-for posts on Instagram, had not breached rule 15.18. As well as using self-reported age data and interest-based factors which, given their broad appeal, would not have been sufficient to ensure under-16s were effectively excluded from the audience, the advertiser targeted the ads at users who had an independent store loyalty card or Visa card, and who were therefore independently verified as being 18 or over. The ASA considered that this was sufficient to corroborate the registered ages of the targeted group and that it was therefore unlikely that the ad had been targeted at anyone under the age of 18 (as the ad also featured alcohol) (Walkers Snacks Ltd, 4 July 2018).
In terms of working with influencers, while paid posts usually allow for the use of age restriction and interest-based targeting tools, the ASA acknowledges that organic posts by influencers can’t always utilise the same tools. Where this is the case, the ASA is likely to expect marketers to use the most robust demographic data available about the audience of the influencer they are working with. Complaints about Nutella’s #WorldNutellaDay campaign – comprising a series of organic social posts from Alfie Deyes (PointlessBlog) and Zoe Sugg (Zoella) – were ruled to have been targeted appropriately. The ASA considered that the advertiser had used the most robust demographic data available to them (in this case, UK subscribers/viewers of the YouTube channel and worldwide followers on Instagram) when determining whether it was appropriate to place ads in PointlessBlog’s and Zoella’s social media channels. The ASA therefore ruled that the ads were not targeted at under-16s through the context in which they appeared or targeted at an audience consisting of more than 25% of under 16s (Ferrero UK Ltd, 4 July 2018).
Marketers are reminded that it is for them to satisfy the ASA that they have taken appropriate steps to comply with rule 15.18 before placing their ad and they themselves are responsible for compliance with the Code. It would not be an acceptable defence to argue that intermediates, affiliates, influencers, or other third parties failed to target or direct a marketing communication appropriately.
What about apps or advergames?
When it comes to apps and advergames, particularly those with content likely to have considerable appeal to children, marketers are advised against relying solely on simple age-gating, given it is often easy for children to misreport their age in order to bypass an age-gate. Relying on app store age ratings is also unlikely to be sufficient to ensure responsible targeting of HFSS content. As with other forms of untargeted media, marketers will be expected to provide evidence to show that no more than 25% of the audience of the app or advergame is under 16 years of age.
The ASA ruled against an advergame app, ‘Squashies World’, which featured a game where players had to match pairs of Squashies sweets and was promoted though the advertiser’s social media, website and product packaging. While the website and the app itself featured an age-gate in which consumers were required to enter a date of birth demonstrating they were over 16, it was possible to continue to re-enter new dates of birth following ineligible entries. Although the ASA considered that the app was not directed at children under 16 through the selection of media, they considered that the content was likely to be of considerable appeal to children and noted that it was featured on Squashies packs, which would likely alert children to its existence. Given this, and because the age-gates were unlikely to deter those under 16 from downloading and playing the game, they concluded that it was likely that a significant percentage of its audience was aged under 16. The advertiser should have therefore ensured they could demonstrate that children under 16 did not comprise more than 25% of the audience and in the absence of any audience data demonstrating that the app had been appropriately targeted, the ASA concluded that it was in breach of the Code (Swizzels Matlow Ltd, 4 July 2018).
What is required for ads in outdoor media?
When it comes to posters and billboards, the audience is usually considered to be the general population, which isn’t, at the present time, considered to consist of more than 25% of under 16s. Marketers should still take care though and if, for example, the poster site is located near a school, the ASA is likely to consider that to have skewed the audience towards having a higher proportion of children.
Many outdoor media owners apply a ‘100 metre rule’, meaning they will not place certain ads, for example those that are sexually suggestive, or those that promote age-restricted products such as alcohol, gambling or e-cigarettes, within 100 metres of a school boundary. While this is not an explicit requirement under the CAP Code, the ASA has previously taken the application of the position into consideration when assessing whether an ad has been responsibly placed. As such, marketers are advised to consider this approach when ensuring outdoor HFSS ads are not targeted at an audience which consists of more than 25% of under-16s.
Is the content of the ad relevant?
Content is a contributing factor when the ASA is considering the likelihood of whether an audience for an ad was appropriate. The more the content is likely to appeal to children, the more likely the ASA is to expect the advertiser to satisfy them that, depending on the medium, under 16s did not make up more than 25% of the audience or all reasonable steps were taken to target the ad responsibly.
Marketers should also bear in mind that although an HFSS product ad might not have been targeted at children through its placement, the restrictions don’t end there. If the content, despite placement, directly targets under-12s then the content rules are likely to apply which cover characters, celebrities and promotions; techniques that evidence suggests have a more significant impact on younger children.
Source: Committee of Advertising Practice (CAP)
Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the ASA. CAP’s Advice Online entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.
How can we help!
We are aware that sometimes whether something is of particular appeal to under-18s can be nuanced – therefore, marketers are welcome to get a view from our Copy Advice team which provides pre-publication advice on advertising at any stage.