Sales & Marketing

19 Jul 2010

New and Updated New Zealand Advertising Standards Authority Codes

The Advertising Standards Authority (ASA) has released the new Children’s Code for Advertising Food (Children’s Food Code). The ASA has also updated the Code for Advertising to Children (Children’s Advertising Code) and the more general Code for Advertising of Food (Food Code).

What is the new Children’s Food Code?

The Children’s Food Code is completely new. It applies to advertisements for food and beverages that have “significant appeal” to children, or will influence them. It applies whether or not the advertisements appear in media specific to, or directed at children, so even if advertisements unintentionally target children they must still comply.

The Children’s Food Code incorporates aspects of the United Nation’s Convention on the Rights of the Child, under which the “best interests of the child are of primary consideration”, and appropriate guidelines are to be established to protect children from information that could harm their wellbeing.

What are the general requirements?

The Children’s Food Code retains the existing definition of children used in other ASA codes, namely anyone under 14 years of age. It promotes compliance with the principles, intention, and spirit of the Children’s Food Code, not just its guidelines. It also requires that advertisements should not undermine the food and nutrition policies of the New Zealand Government, the Ministry of Health Food and Nutrition Guidelines (Food and Nutrition Guidelines) or the general health and wellbeing of children.

The Children’s Food Code requires advertisements to comply with New Zealand law. This includes the Fair Trading Act 1986, which prevents deceptive or misleading conduct in trade, or any conduct likely to mislead or deceive consumers. Advertisers must also comply with all appropriate advertising and food industry codes, including the New Zealand Television Broadcasters Code Getting it Right for Children (which can be located here).

Advertisers are to use a high degree of “social responsibility” when advertising “treat foods” to children (“treat foods” are foods high in fat, sugar or salt, intended for occasional consumption). This means that advertisements must not promote unhealthy lifestyles, undermine the importance of consuming a wide variety of foods, or make any misleading claims about foods that are low in sugar or fat, by promoting them as healthy or low in energy if they are not. Children should not be encouraged to over-consume any type of food (even healthy foods), presumably because this goes against a balanced diet. Finally, the Children’s Food Code requires advertising to uphold the role of parents in trying to educate their children to have a balanced diet.

Application of the principles and guidelines in the Children’s Food Code

The Children’s Food Code features three main principles, with corresponding guidelines.

Given that an advertisement can breach a principle without actually breaching a specific guideline, we recommend you have your advertisements vetted, because the principles are broad and can be difficult to interpret.

Principle 1 requires that all advertising is prepared with, and observes, a “high standard of social responsibility” to both consumers and society. The most relevant guidelines under Principle 1 are that advertisements should not:

• undermine the role of parents in educating children about a balanced diet and being healthy;
• encourage children to consume excessive amounts of treat foods, or eat them regularly as meal substitutes;
• promote products as a complete meal unless they are formulated as such;
• show serving sizes excessively larger than the appropriate portion for a person of the age depicted;
• exaggerate the nutritional benefit of a food, or suggest that a single food should replace a healthy diet;
• promote an inactive or unhealthy lifestyle, and should not negatively portray a healthy lifestyle; and
• contain any nutrition claims that could mislead or deceive consumers, or fail to comply with the Australia New Zealand Food Standards Code.

Principle 2 requires that advertisements should not portray anything that is likely to mislead or deceive children, abuse their trust, exploit their lack of knowledge or unnecessarily play on their fears. The most important guidelines under Principle 2 are that advertisers:

• should bear in mind the level of knowledge, sophistication and maturity of the intended audience;
• must not mislead viewers about the nutritive value of any food, or portray treat foods as healthy or beneficial;
• should not have promotions or competitions or loyalty programmes that encourage repeat purchases of treat foods; and
• should not claim that foods high in sugar are low in fat (or vice versa) as this could give the misleading impression that the product is either low in calories and/or healthy.

Principle 3 states that well-known children’s characters or “heroes” should not be used to promote food in such a way that it undermines a healthy diet (as defined in the Food and Nutrition Guidelines). These characters or “heroes” can present factual and relevant statements about nutrition and health, but should not be used to endorse “treat foods”.

What are the practical implications of the new Children’s Food Code?

Advertisers must adhere to the “intent” of the Children’s Food Code. This means thinking about the provisions of the Children’s Food Code in relation to the advertisement’s content, as well as its timing and placement in the media.

A higher standard of “social responsibility” is required for advertising that is specific to children, and this makes content, audience, advertising medium and form, timing, and product type and attributes all relevant considerations. When a complaint is lodged with the ASA about an advertisement, it will be considered against the requirements of the principles and guidelines in the Children’s Food Code. The total number, nature and details of the complaints received will also be taken into consideration when deciding if the required level of “social responsibility” was met.

There are numerous ASA adjudications that deal with “social responsibility”, and we are able to provide detailed advice on compliance with it.

What are the updated ASA codes?

The Children’s Advertising Code and the Food Code have both retained the definition of “children” as being people below the age of 14. However, the Food Code now requires advertisers to exercise a particular duty of care for advertising directed at “young persons”, being those aged 14-17 years.

The biggest change to both of the revised codes is the broadening of the term “social responsibility”. As with the Children’s Food Code, there is a new emphasis on compliance with their principles, spirit and intention, not just the guidelines. This is important, because guidelines are not exhaustive about how the broad principles are to be applied and interpreted. It’s therefore crucial to have your advertisements under these codes vetted by your legal or business advisers.

The creation of the Children’s Food Code also led to some changes in the scope of the other two codes. In particular, the Children’s Advertising Code now applies to all products and services advertised to children, except food and drinks. The Food Code no longer applies to food advertising directed at children, but continues to apply to all other advertisements for food and beverages.

Summary

The new Children’s Food Code has created comprehensive guidelines for advertising food and drinks to children. It has also changed the scope of the Children’s Advertising Code, and the Food Code.

Because the Children’s Food Code contains both enforceable broad principles and specific guidelines, it will be vital to understand it, and have your advertisements checked for compliance.

Authors

Peter Stubbs

Partner - Corporate & Commercial

DDI: +64 9 977 5010

Mobile: +64 21 955 230

Email:

View Profile

Gwendoline Keel

Senior Associate - Corporate & Commercial

DDI: +64 9 977 5201

Mobile: +64 21 242 6639

Email:

View Profile

Craig Nelson

Senior Associate - Corporate & Commercial

DDI: +64 9 977 5185

Mobile: +64 21 918 309

Email:

View Profile