ReactS : Advertising Lawyers & Attorneys : Reed Smith Law Firm : Marketing Regulations, Product Placement

The new coalition government has stated that one of its priorities is the protection of children from excessive commercialisation. This policy aim reflects a general perception in the UK among the governing and chattering classes that advertising is at the root of both this problem and the problem of obesity among children. Eyes are therefore turned to the advertising industry to see what they have done and what they are doing to protect children.

It is helpful therefore that Ofcom have recently released a review showing that since the rules concerning the advertising of foods that are high in fat, sugar and salt (HFSS) came into force in 2007, advertising for HFSS products seen by children had dropped by 37%, and the fall was greater for younger children (a 55% decline).

There are already a number of rules and safeguards in place to protect children, and these are probably set to increase if the proposed extension of the CAP Code into all promotional messages on the internet goes ahead. Our new Ad Guide on advertising to children goes into greater detail on all these areas.

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The new Health Secretary under the coalition government, Andrew Lansley, has recently announced the axing of the previous government's £75 million advertising campaign to promote healthy living, which was introduced in an attempt to reduce the record levels of obesity in the UK. As Mark Sweney from the Guardian notes, the new administration is instead encouraging the food and drinks industry to get behind a social media campaign.

The Government has a huge deficit to cut, and it was always known that their marketing budget would be at the forefront of these cuts, but it is interesting that the government is highlighting the important effects of social media as a (inevitably cheaper) resource to combat obesity, rather than relying on traditional media, such as poster and television campaigns. Lansley says this will be "less a government campaign, more a social movement" and he encourages charities, local authorities and the commercial sector to all get involved. In return, he hinted that the Government would not seek stricter regulation of food and drink advertising.

This latter comment will no doubt be the cause of some great delight to the beleaguered food and drink industry which has been vilified by so-called consumer groups, and indeed by the previous administration, for, in their words, promoting unhealthy food and drinks, in particular to children, and thus in effect for causing the obesity crisis engulfing the country. As a result of this vilification, the industry has seen substantial and significant advertising content and scheduling restrictions imposed upon them. Any suggestion from the present government that this view now no longer holds sway will cause the food and drinks industry to breathe a sign of relief, although it will no doubt anger the health lobbies, and we can expect to see some criticism from them in the coming days and weeks.

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Several ASA adjudications in recent months have highlighted the difficulties for advertisers in making any health claims about their products. The ASA have come down hard on those that fall foul of the CAP and BCAP Codes which require that, in relation specifically to health claims, advertisers must have evidentiary substantiation of any health claims made in advertisements, by way of documented scientific trials or otherwise. See our Ad Guide to Making Health Claims in Advertising for more detail.

The adjudications demonstrate that, despite the potential profitability in making health claims about their products, it is most probably not worth doing so if advertisers are unable to substantiate such claims when questioned.

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