In brief 6 min read
What can a simple complaint about an advertisement for finger buns tell us about shifting community standards?
A lot (we think).
We think growing community scepticism of sugar has made its way into the Advertising Standards Board. We had previously expressed the view that the Australian Competition and Consumer Commission’s action against Heinz's Shredz was the 'thin end of the wedge' for sugary foods. There, the ACCC had been pressured by lobbying from health groups. But there is no evidence of such pressure acting on the ASB here, whom seem to have simply adopted, of its own volition, the view that the community considers sugar to be the enemy. Associate Nick Li reports.
Advertising Standards Board
The Advertising Standards Bureau is responsible for the self‑regulation of the advertising industry in Australia. The Advertising Standards Board (the Board) sits within the Advertising Standards Bureau, and determines advertising complaints from consumers.
The Board administers a range of industry codes (the Codes) including the Australian Association of National Advertisers (the AANA) Food and Beverages Code (the Food & Beverage Code). The Board is comprised of individuals from a diverse range of backgrounds and the Board’s composition is intended to be representative of the broader Australian demographic.
Relevant codes
In the present case, the Board considered the Code for Advertising & Marketing Communications to Children (the Marketing to Children Code) and the Food & Beverage Code.
Section 2.14(a) of the Marketing to Children Code provides:
Advertising or Marketing Communications to Children for food or beverages must neither encourage nor promote an inactive lifestyle or unhealthy eating or drinking habits
Sections 2.1 and 2.2 of the Food & Beverage Code provide, respectively [emphasis added]:
2.1 Advertising or Marketing Communications for Food or Beverage Products shall be truthful and honest, shall not be or be designed to be misleading or deceptive or otherwise contravene Prevailing Community Standards, and shall be communicated in a manner appropriate to the level of understanding of the target audience of the Advertising or Marketing Communication with an accurate presentation of all information including any references to nutritional values or health benefits.
2.2 Advertising or Marketing Communications for Food or Beverage Products shall not undermine the importance of healthy or active lifestyles nor the promotion of healthy balanced diets, or encourage what would reasonably be considered as excess consumption through the representation of product/s or portion sizes disproportionate to the setting/s portrayed or by means otherwise regarded as contrary to Prevailing Community Standards.
The complaint
On 22 February 2017, the Board was asked to consider a complaint against billboard advertising by bakery chain, Bakers Delight, displayed at Mitcham Square Shopping Centre and Coolman Court Shopping Centre. The billboards depicted the treat at the heart of this complaint, M&M Mini finger buns, in a graphic similar to this one along with the statements:
- 'School lunches? Problem solved';
- 'NEW Mini Finger Bun 4‑pack here for a limited time only at Bakers Delight'; and
- 'Visit Bakers Delight today'.
The complainant asserted that 'advertising of lollies on bread for school lunches is appalling', and that marketing such products to children and their carers was contributing to the childhood diabetes and obesity crisis Australia. They complained that it was 'incredibly'irresponsible and unethical' for Bakers Delight to promote the finger'buns as an everyday food that is appropriate for school lunches, given'that such products should only be rarely consumed by children.
In response, Bakers Delight submitted to the Board that:
- the advertisement was directed to parents, and not children;
- the advertisements were for a 'limited time only' promotion, and would be removed by 12 February in any event;
- the four finger bun pack designed for sharing and was not intended for consumption by one individual;
- Bakers Delight had sold large finger buns for over 20 years, and had promoted the mini finger buns as a more health conscious portion size for children; and
- there were many other products sold by other outlets containing M&Ms which have more calories per serve than the finger buns.
The Board upheld the complaint.
The Board's reasons for its decision
In reaching its decision, the Board considered the images and text of the advertisement as a whole, as well as the guidelines published by the New South Wales and Victorian governments in relation to healthy eating for children.
The Board accepted that the advertisements were not directed primarily at children, and therefore did not contravene the Marketing to Children Code. The Board determined that, although children would likely find the image of the finger buns depicted alongside brightly coloured pencils to be appealing, the advertisement could not be said to be directed primarily at children because the images of the finger buns used with the large text 'school lunches? Problem solved' was clearly directed at parents – promoting finger buns as a potential lunchbox option.
The Board also accepted that the advertisement did not disparage healthy food choices or exercise. The majority further accepted Bakers Delight's submission that the depiction of the 4‑pack was intended to convey that the product was to be shared, and furthermore the size of the 'mini' finger bus was to improve the suitability of the finger buns as a snack for children.
Nevertheless, the Board determined that the advertisement was contrary to community standards and thus contravened section 2.2 of the Food & Beverage Code. In reaching that conclusion, the Board noted that, while the promotion of an unhealthy product was not contrary to prevailing community standards per se, Bakers Delight's submission that the finger buns were intended to be a snack was not supported by the presence of images of healthy lunch options. Further, the Board noted that because the advertisement depicted savoury pastries – such as a scroll – alongside the finger buns, the advertisement implied that a lunchbox 'solution' could include both a scroll and the finger buns. So, while the Board determined that the advertisement did not encourage 'excess consumption', it undermined 'the importance of health or active lifestyles', thus leading to the conclusion that the advertisement contravened section 2.2 of the Food & Beverage Code.
Why is this decision important?
Even accounting for the particular sensitivities around the contents of school lunches, this decision is surprising. After all, the Board accepted that the advertisement was not directed at children, did not promote overeating and did not suggest that the finger bun in question should constitute a complete lunch. So what element of this advertisement tipped it over the edge, such that despite all of that, it undermined a healthy lifestyle and was thus contrary to prevailing community standards? In our view, it's the sugar.
It seems that consumer scepticism of sugar has risen to the level where the skepticism can be said to be a community norm. As youth obesity rates increase, the issue of added sugars to foods will undoubtedly become a weighty political issue.
It is clear that the Board has adopted a presumption that sugary treats are inherently negative and must be 'balanced' with depictions of healthy food. Indeed, the Board contrasted the Bakers Delight advertisement with Kellogg's advertisements for LCM Golden Joys, in which the item was in a lunch box that also contained 'a piece of fruit and a sandwich', emphasising that the product was intended to be a snack.
This is a major, if not entirely unexpected shift in the Board's view of the prevailing community standards. This adoption of an 'anti‑sugar' stance reflects the ACCC's prosecution of Heinz's toddler food in the Federal Court.
This decision signals a shift from determinations reached by the Board in recent years, where promotion of confectionary items of treats have not been found to be in breach of the Food & Beverage Code. See for example the outcome of a Board review of a KitKat television commercial of a woman in running gear consuming a KitKat with the voiceover 'everyone thinks I'm running' (Case 0262/15).
In the advertising space, this brewing socio‑politico storm will result in more stringent regulation (both self‑regulation and external regulation) of food related advertising – resulting in the clamping down on promotion of 'sugary' foods. In the meantime, we are left with the knowledge that lollies for lunch is off the menu.