Picture the yellow M&M – oval-shaped, instantly recognisable, winking from an ad. This week, the Advertising Standards Authority (ASA) ruled it was too closely associated with Peanut M&Ms to benefit from the brand advertising exemption under the less healthy food (LHF) rules. The decision offers a clearer view of how far advertisers can rely on the much-discussed brand advertising exemption.
The LHF ad ban came into legal effect in January. Back in April, the ASA’s first rulings established the key “identifiability test”. This hinges on whether an average consumer could recognise that the ad was for a specific LHF. The ASA concluded that incidental or fleeting appearances of products – such as an almond croissant in Lidl’s advertising or a Diet Coke in German Doner Kebab’s content – are unlikely to be considered to amount to an advert designed to promote those specific products.
The latest round of rulings builds on this and gives brands a more practical steer on the brand exemption. They largely focused on brand adverts that included an image of a product which was not a less healthy food but part of the range which predominantly was considered less healthy. The ASA made it clear that the test would be whether the image was “distinguishable” from the rest of the range and applied this with reference to images accompanying brands’ menus and the advertiser’s website. Any brands that want to rely on the brand exemption in this way would do well to consider how the images of the less healthy products compare to the images in their Online menu.
Using the brand exemption
The Mars Wrigley ruling is particularly important for businesses with well-known brand characters. The ASA emphasised that that brand characters cannot benefit from the exemption where they are the personification of a specific LHF. In that case, the issue for whether the brand exemption could apply was whether the M&M’s characters depicted a specific LHF. The yellow M&M’s distinctive shape and colour were found to point specifically to Peanut M&M’s. That meant Mars could not rely on the brand exemption when using this character as it depicted a specific LHF, and as the advert was considered to be identifiably “for” such a product (albeit among a range of other products) it fell foul of the restrictions.
There are still important questions for brands. One is what happens where the brand name is also the name of a specific LHF where there are strict rules. In the M&M’s ruling, the ASA noted that “M&M’s” was not itself the full name of a specific LHF. As a result, the use of the logo and brand name did not depict a specific LHF. That, however, leaves the question as to how the ASA might approach brands where the dividing line is not so clear.
The stakes are about to rise further. The government has recently closed its consultation on applying the 2018 nutrient profiling model (NPM) to advertising and promotion restrictions along with a 12-month implementation period. The 2018 NPM is stricter than the current 2004/5 version in notable ways: free sugars are included, fibre is given greater weighting, and energy and saturated fats are scored more tightly. The practical effect is that many food products currently not classified as less healthy would become LHF for the purpose of the rules.
The combined effect of tighter NPM thresholds and the ASA’s decisions are evolving understanding of how the law apply means the advertising landscape for food and drink brands is narrowing. Brands that have been relying on the brand exemption as a comfortable fallback will need to look at how their creative, including brand characters, product imagery and digital content, would perform against the identifiability test.
The rules are clearer than they were six months ago, but the margin for error is growing smaller.
Katrina Anderson is a partner at Mills & Reeve
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