Lidl and Iceland are the first businesses found to have breached a junk food ad ban which came into force at the start of the year.
Lidl Northern Ireland has been rapped by the Advertising Standards Authority over a paid-for online influencer ad featuring its pain suisse, while Iceland is in hot water over ads that appeared on the Daily Mail’s website showing a number of sugary treats.
The decisions have come in the ASA’s first round of assessments of possible breaches of the ban, which applies to food & drink products high in fat, sugar or salt (HFSS), also referred to as ‘less healthy’, as defined using the government’s nutrient profiling model.
Companies with 250 employees or more are banned from advertising HFSS products on TV before 9pm and in paid online media at any time.
Advertising a brand, rather than a specific HFSS product, is allowed. The crucial test is whether a consumer could reasonably be expected to identify the ad as being for an HFSS product.
The ASA has been proactively monitoring advertising with AI to identify breaches.
Lidl Northern Ireland’s offending ad was an Instagram post by influencer Emma Kearney, in which she tasted and described a pain suisse and cheese pretzel from the discounter’s bakery.
The ASA said the pain suisse was classed as HFSS and identifiable by consumers in the ad, which had therefore breached the rules. An almond croissant shown was also HFSS, but this was judged not to be identifiable because it featured in the background. The cheese pretzel was not classified as HFSS.
Lidl said it had intended the ad to be brand-led and would work with its marketing agency to ensure future compliance.
In Iceland’s case, programmatically served ads on the Mail’s website prompted a complaint from youth-led activist movement Bite Back by showing Swizzles Sweet Treats, Chupa Chups Laces, Chooee Disco Stix and Haribo Elf Surprises, all classified as HFSS. The products appeared alongside non-HFSS food but the ASA judged that each item shown was identifiable and therefore the ads broke the rules.
The watchdog has told both supermarkets the ads must not appear again and they must comply with the rules in future
Fast-food chain German Doner Kebab also came under scrutiny, thanks to a complaint about an Instagram post by influencer John Fisher, also known as Big John. The ASA concluded the identifiable items in the post, including a chicken kebab and chicken doner burrito, were not classified as HFSS under the nutrient profiling model and so the ad had not broken the rules.
In a fourth assessment of compliance with the new rules, the ASA responded to a complaint about a TV ad for travel agent On The Beach which showed a boy taking a chocolate doughnut from an airport lounge buffet. The ASA concluded consumers would identify the ad as being for the perk of free airport lounge access rather than the doughnut, which was shown only briefly, and therefore it did not break the rules.
The ASA clarified that On The Beach did not fall outside scope of the rules by virtue of not being a food or drink manufacturer or retailer.
Writing for The Grocer today, ASA chief executive Guy Parker said that, “taken together”, the cases “underline a key point: not every ad featuring a seemingly less healthy food or drink is restricted”.
“What our first rulings demonstrate is that, while the government’s stated aim is clear and simple, our work to deliver it demands nuance,” he said.
“By publishing rulings, we aim to give advertisers an even clearer sense of what’s allowed, supplementing our detailed guidance and advice already available to them. People can expect more decisions in the months ahead as we work through borderline areas and establish clearer precedents.
“Looking ahead, our approach will combine rulings, guidance and proactive monitoring. Our active ad monitoring system, powered by AI, will help us identify potential problem ads more quickly and effectively.”
The Department of Health & Social Care last month published a consultation on a revised nutrient profiling model which would strengthen the HFSS ad ban.
Parker added: “We’ll continue to support advertisers through detailed guidance and training. And we’ll respond to developments such as the government’s recent consultation on applying its newly updated nutrient profiling model to less healthy food ads, which might further shape how we apply our rules.”
Christopher Snowdon, head of lifestyle economics at the Institute of Economic Affairs, said: “The ASA’s attempts to police the government’s food advertising ban read like something out of a dystopian satire. Lidl got away with promoting a cheese pretzel on Instagram but it went too far with a pain suisse. Big John had a close shave by filming in a kebab shop, but fortunately didn’t show any verboten products on screen.
“One can only laugh at such earnest attempts to enforce this ludicrous policy. The more serious side is that broadcasters and internet platforms are now missing out on millions of pounds of advertising revenue because the government doesn’t want people to set eyes on perfectly normal food products.”
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