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 Advertising Standards Authority.
For a comprehensive overview of the HFSS rules, check out our eLearning module "Food and soft drink advertising to children".
HFSS product advertisements (see Food: HFSS Product and Brand Advertising) 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 (rule 15.18).
What does this mean in practice?
What can I do to ensure responsible targeting?
How does this apply to content on my website?
What about apps or advergames?
Do the rules apply to e-mails and direct marketing?
What is required for ads in outdoor media?
Is the content of the ad relevant?
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.
Please see our Advertising Guidance note on ‘Media placement restrictions: protecting children and young people’ and ‘Children and age-restricted ads online’ for detailed guidance.
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 under rule 15.18, even if it appears on a website with an audience consisting of over 75% adults.
The ASA investigated a complaint about a joint promotion between Cadbury and the National Trust for Scotland. The promotion 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. Whilst the ASA acknowledged that it was unlikely that over 25% of visitors to the website would be under the age of 16, it 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 (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, because the advertiser had not used any of the tools available to them to target or restrict the audience of the posts. 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, 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 (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 the ads. 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 (Swizzels Matlow Ltd, 4 July 2018).
Do the rules apply to e-mails and direct marketing?
The ASA ad CAP expects that if data was used to create an audience, for example a mailing list for direct or email marketing, marketers must ensure they have taken all reasonable steps to exclude under-16s from the list or targeting criteria. Anyone with a date of birth that meant they were under-16 should be removed
In August 2016, the ASA investigated three emails that were sent to individuals to promote various HFSS Burger King products. Although the emails were only sent to registered users of the “YourBurgerKing” reward scheme who had actively opted in to receive marketing, it was noted that the date of birth of registrants was optional. It was acknowledged that users were required to agree to terms and conditions, which included that the registered user must be over 16, or that they had permission of a parent or guardian (if under 16). However, it was noted these conditions were not available on the sign-up page and that registration could be completed without seeing them. The ASA ruled that Burger King should have taken further steps, beyond self-declaration at the point of sign-up, to ensure that children under the age of 16 were not at risk of receiving promotional materials for HFSS foods (BKUK Group Ltd, 7 February 2024).
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.
In 2019, the ASA considered poster ads for an HFSS ice-cream. Because the poster sites were within 100m of a secondary school and a primary school, the ASA ruled that the ads breached the rule 15.18 (Unilever UK Ltd, 19 June 2019).
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 (see Children: Food).
See also; ‘Food: HFSS Overview’, ‘Food: HFSS Product and Brand Advertising’ and ‘Children: Food’.