Restrictions in promotions of HFSS foods from April 2022
The government's obesity strategy proposals are on track to become legislation.
This includes a wholesale restriction on the advertising and promotion of 'HFSS' foods. 'HFSS' products are food and soft drink products that are high in fat, salt or sugar as identified using nutrient profiling. The Department of Health 2004 to 2005 Nutrient Profiling Model is likely to be used to define whether a product is HFSS Microsoft Word - Nutrient Profiling_DH template.doc (publishing.service.gov.uk). Alcoholic drinks are not included in as they have their own prescriptive requirements for marketing.
A summary of the points legislation outlined in the Queen's Speech concerning promotions of HFSS foods is as follows:
- Health and Care Bill– This will include measures to ban advertising for specified high fat, salt and sugar (HFSS) foods before 21.00h on TV and at all times online.
- Promotions – The government confirms that plans to restrict promotion of HFSS foods will be given effect from April 2022.
- The Calorie Labelling (Out of Home Sector) (England) Regulations 2021- New legislation The Calorie Labelling (Out of Home Sector) (England) Regulations 2021 (legislation.gov.uk) will require large businesses with 250 or more employees in England, including cafes, restaurants and takeaways, to display the calorie information of non-prepacked food and soft drink items that are prepared for customers on menus and food labels from April 2022.
An overview of the proposals for the Obesity Strategy can be seen here Tackling Obesity Strategy – Range of proposed restrictions reviewed to date - Mills & Reeve: Food Law (food-law-blog.co.uk) Specific details on the developments can be found here for promotions and here for calories on menus etc for food services.
Animal Welfare Action Plan
On 12 May 2021 the UK government published an Action Plan for Animal Welfare - GOV.UK (www.gov.uk) proposing measures to further protect the treatment of animals in the UK and abroad.
The plan is proposed to build on existing standards by recognising animals as sentient in law and committing to a range of new welfare measures, including those that protect livestock. It also commits to examine the use of cages for poultry and farrowing crates for pigs; improve animal welfare at slaughter; and incentivise farmers to improve animal health and welfare through future farming policy.
As part of this Action Plan a new animal sentience bill was introduced and had its first reading on 13 May Animals to be formally recognised as sentient beings in domestic law - GOV.UK (www.gov.uk). (Previously, animal sentience had been specifically excluded from the UK Withdrawal Act 2018 as part of Brexit.)
The Animal Welfare (Sentience) Bill will:
- formally recognise animals as sentient beings in domestic law.
By formally recognising vertebrate animals as sentient beings, legislation will have to take into account that animals can “experience feelings such as pain or joy”.
This appears to include wildlife but currently excludes invertebrates.
- establish an Animal Sentience Committee made up of experts to ensure cross departmental government policy considers animal sentience
- ensure Government Ministers update parliament on recommendations made by the Animal Sentience Committee
Farm Welfare - Defra state they will support livestock farmers financially via their Animal Health & Welfare Pathway (Farming for the future: Policy and progress update (publishing.service.gov.uk))
Key issues concern ‘livestock worrying’ as well as examining the use of cages for laying hens and farrowing crates for pigs. This is to be an 'examination' of the use of such cages rather than an outright ban as animal rights campaigners had been demanding. Illegal hare coursing will be the subject of a new crackdown, and the use of glue traps will be restricted.
Improving transport conditions, and considering what further welfare improvements at slaughter may also be made.
Competition and Markets Authority & Environmental Claims
On 21 May 2021 the Competition and Markets Authority (CMA) issued, for consultation, draft consumer protection law guidance for all businesses making environmental claims. The CMA is seeking to understand better how consumer protection legislation can be used to tackle false or misleading environmental claims that affect consumers. They plan to produce guidance for businesses on how they can best be transparent in the way that they market goods and services in relation to any claims made about environmental impact. Misleading environmental claims - GOV.UK (www.gov.uk) The CMA invites interested parties to respond to the questions posed in the consultation document by Friday 16 July 2021. The CMA plans to publish the final version of its consumer protection law guidance in August / September 2021. Alongside this, the CMA will also issue a short guide for consumers
The proposed guidance sets out 6 principles that environmental claims should follow:
- must be truthful and accurate: Businesses must live up to the claims they make about their products, services, brands and activities
- must be clear and unambiguous: The meaning that a consumer is likely to take from a product’s messaging and the credentials of that product should match
- must not omit or hide important information: Claims must not prevent someone from making an informed choice because of the information they leave out
- must only make fair and meaningful comparisons: Any products compared should meet the same needs or be intended for the same purpose
- must consider the full life cycle of the product: When making claims, businesses must consider the total impact of a product or service. Claims can be misleading where they don’t reflect the overall impact or where they focus on one aspect of it but not another
- must be substantiated: Businesses should be able to back up their claims with robust, credible and up to date evidence
Some of the examples provided were as follows:
- A loaf of bread is labelled as “Organic Sourdough”. Sector-specific rules mean food products must be made from at least 95% organic ingredients to be labelled as organic. A claim would be misleading if that threshold is not met.
- A company selling toiletries online presents a range of products with a green banner across the corner of the image stating, “save our seas – these are micro bead free”. This is likely to be misleading as it suggests a benefit in comparison to other products, when in fact micro beads are banned in the UK and should not be in any products.
- A comparative claim that a clothing range is now “greener” is unlikely to be fair and meaningful on its own. It risks misleading consumers as the claim does not make clear the basis for the comparison.
New Grocery Code Adjudicator – Mark White
At a Westminster food forum event on food supplies at which Mills & Reeve food lawyer Jessica Burt presented on regulatory issues, Mark White, the new Grocery Code Adjudicator, outlined his position as an ‘open door approach’ for food producers, building on the collaborative approach taken by his predecessor, Christine Tacon. The legal duty of the GCA to preserve anonymity was also stressed with a new confidential reporting platform at www.telltheGCA.co.uk .
Any queries please email [email protected] or for legal advice please contact Richard Dawson-Gerrard at Mills & Reeve on [email protected]
Members of the International Council for Advertising Self-Regulation (ICAS), which includes the ASA, adopted a Charter at the ICAS Annual Meeting on 7th May 2021 to strengthen advertising self-regulation globally by committing to enhance cooperation, coherence and consistency for the benefit of global consumers and businesses. Download the ICAS Charter here.
Consumer Surveys & Advertising claims
3 key points to bear in mind advised by the ASA A quick guide to advertising consumer surveys - ASA | CAP
- Does the headline claim accurately reflect the survey?
The most common pitfall that marketers fall into is when their ads misleadingly represent their survey’s findings.
- Is the sample size statistically significant?
The ASA will consider claims and supporting data on a case by case basis and marketers should ensure that their sample is of a sufficient size to adequately support the claim they’re making.
The Code does not specifically require sample sizes to be included in marketing communications, unless it would be misleading to omit them. So, if results are based on a robust sample size in which statistically significant findings can be drawn, then there is no need to include the sample size in the ad.
- Is the sample representative?
Marketers are not prohibited from conducting their survey on participants who are likely to view their product more favourably than a representative sample, so long as they make clear to consumers that this is what they have done.
For example, Ristorante Pizza fell at this hurdle when their ad suggested that their survey was taken from a representative sample, when in fact, to take part in the survey, participants had to have first purchased Ristorante Pizza.
Organic Foods & Environmental Claims
There is a new advice note published by the CAP Executive about non-broadcast advertising Organic foods - ASA | CAP, of particular note was environmental claims:
Unqualified, absolute claims such as “environmentally friendly” or “sustainable” should not be used to describe organic food production because all managed food production systems cause some damage. Claims such as “friendlier” or “more sustainable” may be acceptable if marketers can show that less environmental damage is caused than by conventional farming methods.
In 2017 the ASA considered an ad for an organic milk product which included the claim “Good for the land ... helping to support a more sustainable future”. The ASA considered that consumers would interpret the claim to mean that the production of the advertised product would have an overall positive impact on the environment, taking into account its full life cycle. Whilst evidence was supplied with regard the farming methods of the organic farm compared with its non-organic counterparts, evidence was not supplied to demonstrate then when taking into account the full lifecycle of production, the milk product had a positive environmental impact (Arla Foods Ltd, 7 June 2016).
Health Claims in ads to be authorised
JST Nutrition Ltd 19 May 2021 JST Nutrition Ltd - ASA | CAP the ASA held the ads must not appear again in the form complained about. The ASA told JST Nutrition and Jodie Marsh to ensure that any specific health claims made in their future advertising were authorised on the GB Register and met the associated conditions of use, and to ensure that their future ads did not state or imply that their food supplements could prevent, treat or cure human disease. We also told them to ensure that their future ads were obviously identifiable as marketing communications, and that identifiers such as #ad should be clearly and prominently displayed.
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