The Government is consulting on a total ban of online adverts for products high in fat, salt and sugar (HFSS).
The proposed ban comes as part of the Government’s obesity strategy and after the statement of intent to introduce a 9pm watershed on HFSS advertising both on television and online.
The consultation is open for responses until the 22nd December 2020, with measures coming into force by the end of 2022.
In early 2019 the Government launched a consultation on further advertising restrictions for products high in fat, salt and sugar. That consultation closed in June 2019 and the Government is yet to publish its formal response.
The Government did, however, announce in their obesity strategy of July 2020 that they intend to ban HFSS adverts being shown on TV and online before 9pm. The Government said that it “wanted to go further online”. This consultation asks the questions on going further via a total ban of online advertising for HFSS products.
The Government is keen to be seen as proactive and tough on obesity. This is partly because the UK is particularly obese - two thirds of adults are overweight, with one third being obese - and partly because of the link between obesity and coronavirus mortality.
The consultation is clear that a total ban of HFSS advertising online is the Government’s preferred option.
The broad aim is to reduce the HFSS advertising seen by people, and particularly by children (hence the 9pm watershed). The rationale for a total ban online is to “futureproof” the policy against changing media habits, account for a lack of transparent and independent data, and address issues with the way that adverts would be targeted away from children.
The Government is particularly concerned about repeated inadvertent breaches of the rules, citing evidence that 95% of YouTube channels aimed at children have served HFSS adverts. The consultation considers targeting, and associated audience-based restrictions, to be too likely to fail. It is this assumption primarily that leads to the conclusion that the most workable solution is a total ban, rather than a watershed or similar.
The consultation’s defined scope of online advertising is drawn about as broadly as it could be, covering search, in-game advertising, email marketing, advertorials and much more. It goes so far as to suggest that advertisers selling an HFSS product, or which are “synonymous with HFSS products”, should ensure that their own social media posts are only found by users “actively seeking them”.
The consultation proposes exempting broadcast video on demand from this total ban because of new audience measurement of the same quality and dependability as linear television. If the online advertising were able to offer sufficient comfort to the Government on measurement, it appears there would be room for a watershed rather than a total ban.
The consultation proposes a new “statutory backstop” regulator to work alongside the Advertising Standards Authority. This statutory regulator would be able to levy fines and other civil sanctions for repeated breaches, as well as potentially being able to require evidence of compliance and processes from businesses in scope.
The consultation also considers whether other actors (potentially including advertising platforms and others) should have some responsibility for the advertising that they serve which breaches the restriction, and whether a notification and takedown regime could be introduced.
The consultation is open for responses until 22/12/20. It will be an uphill battle for the industry considering the Government’s stated intent to go further and their naming of a total ban online as the preferred option.
But not responding leaves online advertising businesses, as well as businesses that advertise online, hugely exposed to a major regulatory event. Businesses that will be impacted should look to respond to the consultation with strong evidence and clear arguments.
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