New Zealand tightens its belt on high-calorie advertising to youth

In brief 4 min read

The New Zealand Advertising Standards Authority has been enforcing a new code since October 2017 that governs all advertising targeted to children and young people. It outlines specific rules for food and beverage advertisements, including for high-calorie ‘Occasional Food and Beverage Products’.

How does it affect you?

• The Children and Young People’s Advertising Code (the ASA Code), enforced since 2 October 2017, applies to New Zealand advertisements, and to international advertisements that are intended primarily for non-New Zealand audiences but nevertheless reach New Zealand audiences.
• This means the ASA Code applies to a wide range of online marketing, including advertisements on social media platforms, such as product reviews by independent third parties.
• The advertisement of ‘Occasional Food and Beverage Products’ is highly restricted, including a prohibition on sponsorship advertisements showing the product, the product’s packaging or the consumption of the product.

Overview of the ASA Code

The ASA Code applies to all advertisements that ‘target’ children (under 14 years of age) or young people (between 14 and 18 years of age), whether contained in children’s or young people’s media or otherwise. In determining whether the Code is applicable, the ASA Complaints Board will make an evaluation based on the context of the advertisement and the relationship between the following three criteria:

1. whether the nature and intended purpose of the product being promoted is principally or generally appealing to children or young people;
2. whether the presentation of the advertisement content (eg theme, images, colours, wording, music and language used) is appealing to children or young people; and
3. whether the expected average audience at the time or place the advertisement appears includes a significant proportion of children or young people.

‘Occasional Food and Beverage Products’

The key provisions of the ASA Code govern the representation of ‘Occasional Food and Beverage Products’, which are defined as those that are high in fat, salt or sugar, and classified under the Food and Beverage Classification System (the FBCS).

Under the FBCS, foods are categorised as either ‘everyday’, sometimes’ or ‘occasional’ foods. There are foods that automatically and unsurprisingly fall into the occasional category, such as confectionery, deep-fried foods, and full-sugar and artificially sweetened energy drinks and carbonated beverages. However, it is important companies be aware that many foods listed in the FBCS can change category depending on portion size and nutritional content. For example, a 30-gram packet of dried fruit, nut and seed mixture is categorised as an ‘everyday’ food if there is less than three grams of saturated fat per serve. However, if the package size is more than 30 grams and it contains more than five grams of saturated fat per serve, the item is classified as an ‘occasional’ food.

The ASA Code requires that, in relation to occasional food or beverage products:

• an advertisement must not state or imply that the product is suitable for frequent or daily consumption and, where possible, healthier options should be promoted;
• the quantity of the product in the advertisement should not exceed recommended portion sizes for the person of the age depicted;
• an advertisement must not create a sense of urgency or encourage the purchase of an excessive quantity of the product; and 
• advertisers need to demonstrate that care has been taken to evaluate whether children will be a ‘significant proportion’ of the expected audience before placement of the advertisement.

Sponsorship advertisements

• Although the ASA Code allows companies to sponsor teams, individuals, events and activities, it requires that they exercise a ‘special duty of care’ if an occasional food and beverage product is to be the subject of a sponsorship advertisement. The ASA Code prohibits any sponsorship advertisement from showing the product, the product’s packaging, or depicting the consumption of the product.
• Instead, the ASA Code recommends that the advertisement focus on the sponsored team, individual, event or activity.

How does it compare?

There are two Australian Association of National Advertisers (AANA) codes that cover similar ground to the ASA Code. They are: 

• the AANA Food & Beverages Advertising & Marketing Communications Code; and 
• the AANA Code for Advertising & Marketing Communications to Children (together, the Australian Codes).

The Australian Codes contain analogous requirements that food and beverage advertisements not undermine the importance of a healthy balanced diet; encourage or portray excess consumption; or employ a deceptive sense of urgency.

However, the Australian Codes do not require advertisers to evaluate whether children will be a ‘significant proportion’ of the expected audience of such advertisements, and do not contain specific restrictions around the advertisement of ‘occasional food and beverage products’.

But this New Zealand Code doesn’t concern me … does it?

The ASA Code applies to all New Zealand advertisements but also applies to advertisements that originate outside of New Zealand, if those advertisements reach New Zealand audiences.

Where a complaint is made about a non-New Zealand advertisement that is intended primarily for audiences outside of New Zealand, the ASA Complaints Board will determine whether the ASA Code applies. In making its determination, it will take into account the size and composition of the New Zealand audience, whether the advertising is targeted at New Zealand consumers, and the accessibility of the product to New Zealand consumers.

This can be a complicated question in relation to online marketing. The ASA broadly defines an advertisement as any message the content of which is controlled directly or indirectly by the advertiser, expressed in any language, and communicated in any medium with the intent to influence the choice, opinion or behaviour of those to whom it is addressed. This captures a wide range of advertising material published online, including messages on social media, blogs and vlogs.

On 28 February 2018, the ASA released a new Guidance Note on Identification of Advertisements, with a section dedicated to outlining transparency for social media advertising. The key determining factor in social medial content being considered an advertisement is whether the brand has control over the brand messages and / or content of the material. For example, the ASA Code would not apply to a situation where a brand has provided an independent third party with a free sample of a product to review but does not have any control over the content of the messaging, including requiring that certain information about the product be included in the review. This would be the case
with the relevant Australian Codes as well, under the AANA’s Clearly Distinguishable Advertising Best Practice Guideline.

Conclusion

It is important for businesses to review existing and planned advertisements that may reach a New Zealand audience in order to avoid breaching the ASA Code, and the negative brand associations that follow. This is particularly the case for online advertisements such as messages conveyed through social media platforms. 

Furthermore, companies that engage in sponsorship advertisements with occasional food and beverage products should be cognisant of the extensive nature of the sponsorship advertisement prohibition, which means that any depiction of the product, its packaging or consumption is likely to be in breach of the ASA Code.