A Submission to the Advertising Standards Authority
and the
Committee on Advertising Practice
National Food Alliance
July 1994
This submission has been prepared in response to the Committee of Advertising Practice's (CAP) review of the British Code of Advertising Practice and of the British Code of Sales Promotion Practice.
The National Food Alliance (NFA) raised many concerns about advertising and food in its report, Children: Advertisers' Dream, Nutrition Nightmare (Dibb, 1993). This report made a number of recommendations including that advertising regulatory bodies, in consultation with public health and consumer bodies, should draw up new codes of advertising practice and procedures which better reflect current, nationally agreed, health and nutrition guidelines. We are therefore pleased that the CAP is reviewing its code of practice and that, for the first time, it is consulting beyond its industry membership.
Our report also made a number of recommendations about the structure and procedures of the advertising regulatory bodies. While sonic of these may be beyond the scope of the CAP's review, others are not, and are amplified in this submission. We thus address our submission to both the CAP, as the body that draws up the codes and to the Advertising Standards Authority, as the closely allied body that implements and monitdrs the codes or practice.
The NFA also recommended that the government's Nutrition Task Force should institute a systematic review of advertising and use its influence with government and other bodies to develop new codes of practice and procedures for more responsible food advertising, particularly to children. The NFA therefore welcomes the statements in the Nutrition Task Force's action plan, Eat Well! (NTF, 1994) that 'regulatory bodies... should be invited to examine their codes or practice in the light of Health of the Nation dietary targets with a view to identifying any desirable changes. The NTF recommends that particular regard should be paid to advertising to children.'
Accordingly the NFA's Advertising Working Party has drawn up proposed amendments to the CAPIASA Code which are detailed in this document. We have aimed to be realistic in our proposals and to reflect the Health of the Nation strategy. The document has been circulated for consultation to all the organisations which have endorsed the recommendations of Children: Advertisers' Dream, Nutrition Nightmare? These are listed at the front of this document.
General proposals
1. Guidance note on food and drink:
The ASA/CAP should develop a separate guidance note covering the advertising of foods and drinks, including a sub-section on nutrition-related issues.
2. Guidance note on children:
The Guidance Note on Children should include a sub-section on foods and drinks, covering both advertising to children and advertising of products substantially consumed by children.
3. Food and drink advertising to professionals:
The ASA/CAP should extend the Code to include advertising for food and drink in professional publications.
4. Multiple advertising codes:
All advertising regulatory authorities should agree a joint code of practice on those issues which are common to all advertising.
5. The public interest:
The Code should affirm that the ASA/CAP is an institution which operates in the public interest; that protection of the public is its highest priority; and that in any conflict between its public responsibilities and 'freedom of commercial speech', the public interest takes precedence.
6. Consumer Information:
The ASA/CAP should maintain a continuous consumer information programme to maximise awareness of the Code and facilitate access to its complaints services.
7. Monitoring food and drink advertising:
The ASA/CAP should promptly initiate a special category monitoring programme on food and drink advertising, to be published in full.
8. Periodic review:
The ASA/CAP should monitor the operation of the new Food and Drink Guidance
Note, adopt a mechanism for its prompt amendment in the light of developments in nutritional science and problems revealed by the monitoring, and systematically review the Note after three years, including widespread consultation with the general public and representative health and consumer groups.
Guidance note on Food and Drink
9. Scientific basis for food and drink advertising:
Those components of advertisements for foods and drinks which relate to nutrition and health should be consistent with generally recognised findings of nutritional
science, as represented by reports of expert advisory committees which have been accepted by the government.
No advertisement for food or drink should be based on unpublished research, papers published in unrefereed journals, or in-house research by the advertiser. Nor should any advertisement be based solely on research supported by the advertiser, or by associations of which the advertiser is a member, or by foundations/trusts of which the advertiser is a sponsor.
Advertisements for foods and drinks must not attack, discredit, denigrate, contradict or cast doubt upon generally recognised findings of nutritional science, as represented by the reports of expert advisory committees which have been accepted by the government.
Advertisements for foods and drinks should not suggest that meeting dietary recommendations, or healthy eating in general, is an unrealistic goal.
10. Interpretation:
The meaning of an advertisement is what typical consumers will understand by it, not what the advertisers claim were their intentions.
Advertisements shall be assessed on the general impression they create, not on any qualifying details or background information.
The Code will be applied in the spirit as well as to the letter. Literal conformity with rules will not guarantee the acceptability of an advertisement, if the impression it creates with the general public is in violation of the Code.
11. Claims in food and drink advertisements:
A claim is any message, reference or representation, whatever the means or form of
transmission including trade marks, stating, implying or suggesting that a foodstuff
has special characteristics, properties or effects linked to its nature, composition,
nutritional value, method of production and processing, or any other quality.
Generalised health claims:
All claims that a single food or drink product is in some unspecified way beneficial to health are prohibited.
Generalised claims:
Generalised claims should not be permitted unless they can be substantiated in a measurable and objective way and apply to the whole food, not to a particular ingredient.
Nutrition claims:
All claims relating to the nutrient content of foods and drinks should conform to the prevailing government regulations and guidelines.
Health claims:
The claim must relate to the food as eaten rather than to the general properties of any of the ingredients. A food tnust be able to fulfil the claim when consumed in normal quantities. The role of the specific food should be explained in relation to the overall diet.
The ASA/CAP should require advance substantiation for all health claims before publication. A specialist panel of nutritionists and consumers with relevant expertise should assess the evidence.
Energy claims:
All claims that a food or drink is a superior, rapid, sustained or reinvigorating source of energy should be prohibited.
Light and diet claims:
All advertisements for foods and drinks claiming to be 'light/lite' (or similar phrases) should include prominently a specification of the characteristics of the product underlying that claim. If the claim refers to the product's energy or nutrient content, then it should conform to government regulations or guidelines covering 'low' claims for energy or the relevant nutrient.
Any advertisement for a 'diet' food or drink should include a prominent specification of its energy content.
12. Substantiation of claims
Whenever a health-related claim appears in a magazine or newspaper advertisement for foods and drinks, the basic substantiating evidence must appear in the text of the advert itself, in type of sufficient size and legibility to be read without optical aids by ordinary consumers.
Any health-related claim in a magazine or newspaper advertisement for foods or drinks should trigger a full nutritional declaration in the text of the advert itself, exactly as if the claim were made on the product's label.
13. Food Categories:
The ASA/CAP should adopt the terminology of the National Food Selection Guide wherever the revised code or any relevant guidance notes refer to specific types of food.
Advertisements must not encourage the excessive consumption of fatty and sugary foods, nor suggest that they may be substituted for balanced meals.
Advertisements must not discourage the consumption of 'fruit and vegetables' or 'bread, other cereals and potatoes'.
14. Slimming products:
The current pre-vetting system for slimming product advertising should be retained and implemented effectively.
The ASA/CAP snould implement effective sanctions, including financial, against publishers and advertisers for adverts that do not conform to the code. This should include publicising the names of offending publishers in addition to advertisers.
No slimming or other product advertised at the general public should suggest in any way that it is suitable for the treatment of obesity.
No advertisement for a slimming product shall make any reference to the amount or speed or weight loss, or to a reduction in the sense of hunger or an increase in the sense of satiety. This should cover not only claims but also product names and testimonials.
Advertisements should not suggest that underweight is desirable or attractive or in any other way encourage individuals to become unnecessarily concerned about their weight.
15. Guidance Note on Children:
The new Guidance Note on Children should explicitly recognise that an inappropriate diet may cause physical harm to children, both by contributing to health problems in the short term and by creating unhealthy food consumption patterns which contribute to chronic diseases later in life.
All advertisements for foods and drinks intended for infant feeding and weaning must be consistent with expert advisory committee recommendations which have been accepted by the government.
If any food or drink intended for infants or young children carries on its label any conditions restricting its use or any warilings about the risks of misuse, such conditions and/or warnings must appear in the same form in any advertisement for those products.
Advertisements must not encourage children to consume foods or drinks which contain non-milk extrinsic sugars or drinks which are acidic in nature frequently throughout the day or in between meals.
No advertisement for tfatty and sugary foods should appear in any medium specifically directed at children, or which large numbers of children are likely to see.
Advertisements for 'fatty and sugary foods' in media which children are likely to read must not (a) contain cartoons, toys or characters of special interest to children; (b) use personalities or other characters (including puppets) of special interest to children to present or endorse their products; (c) depict children presenting or endorsing the product.
Food and non-alcoholic drinks are the most advertised products in the UK. In terms of advertising expenditure, it consistently outstrips all other product categories. While much food advertising is conducted via television, it is also a significant category in print and poster media. So too are non-alcoholic drinks.
Because of the now well-established scientific, governmental and public concern about the nutritional quality of the British diet, foods and drinks are increasingly promoted on a health platform. Claims for the nutritional virtues of products have proliferated.
In many ways, this is a positive development - raising awareness of the nutritional dimensions of food and drink and informing people about the distinctive attributes of individual products. Fifteen years ago, nutritional claims were thought more a hindrance than an aid in selling mass market foods and drinks. Now manufacturers compete in terms of health which has some benefits.
However, concern has correspondingly increased about the inaccuracy, selectivity, irrelevance and misleadingness of some of these claims. The Food Advisory Committee has expressed its worries in a report on the subject (FAC, 1991). The Ministry of Agriculture, Fisheries and Food is preparing voluntary guidelines on nutrition claims (MAFF, 1992a). The European Union (EU) is drafting a directive on some of the contentious areas (Commission, 1992). The Nutrition Task Force has made food advertising a specific focus for action under the Health of the Nation initiative (NTF, 1994).
Thus, a regulatory issue has emerged. It is an issue of consumer protection. But it is also a matter of fair competition.
The development of nutritionally modified products can be a difficult and expensive process. Their marketing is risky. Companies which create genuinely improved products need to be able to make distinctive claims. If competitors can make similar-sounding assertions without having appropriate formulations, then the whole new product development process is undermined. Competition is distorted, the motivation to invest destroyed. In consequence, the long programme of improving the nutritional quality of foods and drinks will be delayed.
The NFA hopes that the Advertising Standards Authority and the Committee of Advertising Practice recognise this dual rationale for the regulation of food advertising and accept the challenge of creating a level ana well-refereed playing field between competitors. Scientific standards for health- related claims in food and drink advertising are needed, standards which apply fairly to all. Companies as well as consumers will benefit.
Potential gains in public health are also great. Numerous government and medical reports have demonstrated that Britain as a nation is eating an unhealthy diet. We suffer the consequences in serious health problems - lethal, disabling, expensive. There are many influences on food choice, but in a modern society, advertising is one important factor. Because of its pervasiveness and persuasiveness, the power of food and drink advertising often exceeds that of nutrition education, for good (as we noted above) or for ill.
The Health of the Nation initiative sets quantified targets for changes in the national diet and reductions in diet-related diseases. Achieving those goals is not for government alone. The Nutrition Task Force involves all key sectors in its programme, not only government departments, health professionals and public interest groups like the NFA, but also industry.
It recognises that the food and advertising industries have a crucial role to play in improving the health of the nation. We urge industry to engage with that challenge and affirm its social responsibilities. One concrete means to these ends is to develop new principles for responsible food advertising - that is, advertising which better reflects current, scientifically-based and nationally-agreed health and nutrition guidelines.
The NFA acknowledges that it too has responsibilities in this field. The report, Children: Advertisers' Dream, Nutrition Nightmare?, drew attention to many problems in contemporary advertising and in the current advertising regulatory system (Dibb, 1993). It is incumbent upon us to propose, in detail, how we would resolve those problems.
Therefore, the NFA welcomes the ASA/CAP's initiative in reviewing the British Code of Advertising Practice (BCAP) and its first consultation with non-industry organisations. Codes of practice are not the only components of advertising regulation which need improvement and our report included recommendations for improving the structures and procedures of the regulatory bodies. But codes are the appropriate vehicle for making explicit the principles of responsible advertising.
The NFA here presents detailed proposals for revising the Code and explains the rationale behind them. They cover regulatory principles, food and drink advertising, the most common claims, specific foods and advertising to children. New rules have been carefully worded to ensure workable guidance to advertisers, enforceable standards for regulators and usable information for consumers. This is what we mean by responsible food advertising.
1. Guidance Note on Food and Drink
The present British Code of Advertising Practice has no separate sections on food advertising, or on the advertising of non-alcoholic drinks. Selected aspects are considered in the sections of Part C dealing with Health Claims, Vitamins and Minerals, and Slimming.
However, the volume of food and drink advertising and the increasing importance of nutrition-related claims requires specialist provision. There are many aspects of food and drink advertising which would benefit from new standards, with health as an important component.
Alcoholic drinks are separately covered in the present Code. The NFA's proposals relate solely to non-alcoholic drinks and for convenience we refer to them henceforth simply as 'drinks'.
Nutrition could be dealt with in a sub-section of revised rules on Health Claims. However, issues surrounding nutrition are much broader than just 'health claims' and require correspondingly broader provision.
The NFA understands that the ASA/CAP intends to separate the main body of the Code from the rules on particular categories of products, which will henceforth be dealt with in separate 'Guidance Notes'. Therefore, the NFA proposes:
In addition, the ASA/CAP should make provision for the specialist issues in the advertising of foods and drinks consumed by children and infants. The present section on children in Part C does not cover these products explicitly. We urge the ASA/CAP to expand the scope of the prospective Guidance Note on Children.
But there is a further issue. Foods and drinks for infants are not purchased by the infants themselves. Neither are many of the foods and drinks which are consumed by older children. They are bought by parents and others acting in locoparentis, so much of the advertising for them is directed at these buyers.
The existing section on children is concerned solely with advertising TO children. These are important provisions and we make proposals in this document to enhance them. But the NFA considers adequate protection for children must also cover all advertising for foods and drinks which appeal to and are consumed substantially BY children, whether the intended audience for the ads is children, their parents, others responsible for feeding children, or a mixed group. Therefore, the NFA proposes:
3. Food and Drink Advertising to Professionals
Many foods and drinks which claim nutritional benefits are not promoted directly to final consumers, but to health and other relevant professionals, with the intention that these authoritative specialists will recommend the products to the end users. Examples include weight-reduction products, diet supplements, 'health foods', 'functional foods', products for infants and young children, products for athletes, and 'foods for particular nutritional uses'.
Advertising to professionals is explicitly excluded from the present code. But this form of advertising is becoming increasingly important for the promotion of foods and drinks. The current controversies over the advertising of infant and follow-on formulae are just the most visible parts of the problem. The imminent arrival of 'functional foods', 'nutraceuticals' and other vitamin-fortified products is likely to create the next contentious area.
Two rationales underlie the present exclusion: (1) professionals are sufficiently knowledgeable to assess advertisements themselves; and (2) the publishers of professional journals apply their own standards.
In our experience, both these assumptions are unwarranted. Most health professionals receive only limited training in nutrition and few subsequently have the opportunity to develop the specialist expertise necessary to exercise independent judgement on nutritional issues. Professional journals commonly lack the time and staff, as well as the expertise, to investigate and vet the nutritional content of all prospective ads.
Therefore, food and drink advertising to professionals is just as much in need of standards as any other group. As the established regulatory authority for all other print media, the ASA/CAP is a logical institution to provide them.
The NFA believes this unregulated area should be covered by the ASA/CAP, in collaboration with professional associations. This might be achieved through the negotiated extension of the Code's scope or through delegation arrangements between the ASA and individual professional groups. Therefore, the NFA proposes:
We recognise that any such extension of the ASA/CAP's remit must be carefully planned and will be the subject of negotiations with groups outside the ASA/CAP itself. But we urge the ASA/CAP to initiate the extension process as soon as possible.
There now exist three principal codes of practice for advertising in the UK, coverin print, television and radio media. There are good reasons for separate provision because the three media have obviously different characteristics.
However, in many areas, the principles of responsible advertising overlap and there are similar, but not identical provisions in the three codes. These different wording complicate life for advertisers and confuse any consumers or public interest groups who seriously try to understand advertising codes.
Therefore, because the ASA/CAP is undertaking such a fundamental review of its code, we recommend the opening of negotiations with the other regulatory authorities for a consolidation of the separate codes of practice. This would be in line with government policy for streamlining regulations for the food industry.
Ideally, the NFA would like to see a common core of general principles, plus common rules for specific areas like food and children, with separate regulations to deal with the distinctive issues of each medium. Therefore, the NFA proposes:
The ASA/CAP makes much of its role as an institution of self-regulation. That is appropriate as far as it goes. And the NFA recognises the potential advantages which self-regulation can bring.
But the reason why regulation is necessary at all is to protect the public and rival companies from irresponsible advertising. Therefore, in exercising 'self-regulation' the ASA/CAP is also carrying out public responsibilities. As The Control of Misleading Advertisements Regulations 1988 make clear, these are responsibilities delegated to the ASA/CAP by the government. And as the judicial review (Divisional Court, 1988) made explicit, the ASA is 'clearly exercising a public law function'.
However, the NFA has been informed by the ASA's director that it operates with 'a bias to freedom of commercial speech'. Such a bias is inappropriate to the ASA/CAP's role as a protector of the public interest.
If an organisation with delegated public responsibilities explicitly operates in favour of its private members, then it is not fulfilling its role. The potential advantages of 'self-regulation' are subverted. Such a defence of self-interest could lead, as it has in the past, to demands for the statutory control of advertising.
This is not an abstract point. The whole concept of industrial 'self-regulation' is coming under challenge. Major institutions in the City of London are aggressively sceptical about weak, lax and self-serving 'self-regulation' in the financial sector. They are openly calling for the institution of statutory controls.
The NFA does NOT feel such a change is necessary in the advertising field at present. We are not calling for a statutory code of practice for advertising.
However, we are seriously concerned about the bias in the ASA/CAP's current operations. Therefore, your public responsibilities should be made explicit and emphasised in the revised Code. The NFA proposes:
Such an inclusion would be a valuable statement of purpose. However, the real isation of that purpose would require numerous other changes in the structure and operation of the ASA/CAP.
The present review focuses exclusively on the revision of the code of advertising practice, so this is not the place to consider these institutional reforms in detail. However we wish to note briefly that they would involve, among others, changes in the representation on the boards and committees of both organisations, better relationships with outside bodies, more frequent and significant consultation with the public, greater openness in procedures, increased provision of information to the public, easier access for complainants, open and balanced selection of outside expert advisers and more effective sanctions on violators.
The remainder of this document deals solely with proposed changes to the British Code of Advertising Practice.
The ASA is currently engaged in an advertising campaign to draw the attention of the general public to its role as a regulator. But this is very limited information
about its existence and does not give consumers any real guidance on what constitutes irresponsible advertising or on how to complain when they encounter it. The advertisements do not even give a contact address or telephone number.
In default of detailed information from all the regulatory authorities, the NFA has recently sent its member organisations, for re-distribution to their members, a basic guide on 'How to Complaint about advertising.
The code review explicitly states that the ASA/CAP does not intend to publish specific guidance to consumers or to rcprcscntativc organisations about its revised code and guidance notes. We feel this is a scrious omission which should be corrected.
In future, providing information and advice to the public should be part of your public responsibilities. Therefore, the NFA proposes:
7. Monitoring Food and Drink Advertising
The ASA/CAP already has institutionalised arrangements for the 'Special Category Monitoring' on subjects of topical interest. Food and drink advertising is just such an issue of concern.
The results of such monitoring would provide an empirical foundation for the development of the Food and Drink Guidance Note which we propose. Among many valuable uses, for example, it could document which foods are advertised to which population groups, and how they compare with dietary recommendations. It could measure violations of the present code, whether they are the subject of complaints or not, in order to strengthen regulations. And it could reveal the changing pattern of nutrition-related claims, as defined and discussed below. This would also provide an opportunity for dealing with long standing concerns over the cumulative effect of advertising.
At present, there is no comprehensive, publicly-available database on the volume and nature of claims being made about health in food and drink advertising. Some years ago, the Coronary Prevention Group conducted a survey of claims made on food labels (CPG, 1991), which documented a substantial number of problems. We need an equivalent survey of claims in advertising.
Once a new Food and Drink Guidance Note is developed, it would be important to monitor any problems in its operation, in order to refine and improve its provisions.
We understand that it has been the ASA/CAP's practice not to publish or distribute the full results of its monitoring exercises. As a general rule, the NFA believes that any authority operating in the public interest should make such basic research results public. And in this specific case, because of the wide public interest and the current development of public policy in food and drink advertising, we think it important that the results of any such monitoring be publicly available. Therefore, the NFA proposes:
As previously noted, the promotion of foods and drinks on health platforms is a rapidly developing area. Advertisers themselves are taking the initiative. New types of products are about to come on the market. The Nutrition Task Force is asking regulatory bodies to review advertising codes of practice. Both the UK government and the EU are developing additional regulations for selected areas. We anticipate many new developments in the near future.
Therefore, the NFA considers that even after publishing the Food and Drink Guidance Note, the ASA/CAP should maintain a continuous watching brief in this area. Specifically, the NFA proposes: