Promotions expert highlights few loopholes in the proposed HFSS online advertising ban

Promotions expert highlights few loopholes in the proposed HFSS online advertising ban

Food and drink brands and their agencies have been dismayed by a highly damaging announcement by the UK Government that it will ban all online advertising of certain products High in Fat, Sugar or Salt (HFSS) in 2023. It will mean a total ban on paid-for advertising online for certain HFSS products alongside a 9pm watershed ban on TV in April 2022.

So what can the industry do?

PromoVeritas Chief Executive Jeremy Stern, whose agency runs promotions for large FMCG brands, such as Kellogg’s, Pepsi and Cadbury’s and advises on the legality of promotional work globally, believes there are only a few ways around the ban.

Industry fear

He also believes the industry is afraid to oppose the ban because of the potential for reputational damage in doing so.

Jeremy says, “I don’t think there will be as much debate as there should be because brands are scared about having their views misinterpreted as: ‘We’re in support of [childhood] obesity”.

The agency submitted its views to Government earlier on in the consultation process. As a former FMCG marketer of 20 years, Jeremy is among many in the industry that support the existing ASA rules on advertising to children as an alternative.

HFSS products are defined by the Government’s Department for Health and Social Care. They include not only confectionery and carbonated drinks brands but also ready meals and fish fingers.

Under the proposal, Jeremy advises there are a few watch-outs for advertisers as they come to terms with the new rules.

“A lot of e-commerce websites offer enhancements, so a bit like Google, you can be at the top of the tree if you pay for an ad. So on an e-commerce site for example, Ocado may be a featured site and appear first in the list. Whether that is seen as an advertisement is yet to be determined,” he says.

Loopholes

There are several exemptions, such as brand advertising when it does not include identifiable HFSS products and ads in digital-only audio media, such as podcasts. But Jeremy highlights just two loopholes in the ban that brands might be able to exploit. Only one of them is applicable to online advertising.

“Specialist retailers, like Hotel Chocolat and ice cream parlours, they will be able to have window displays,” he says.

The other will require radical restructuring of operating structures for major food brands.

“You are exempt if you employ less than 250 people. I wonder whether brands are going to split themselves into small subsidiaries – ‘Bounty Bar Limited’, for example. Obviously, this is not following the spirit of the law but if we’re not happy with the law, people will find a way round it.”

The only other way round the ban, which many brands have already been taking for some years, is a reformulation with low fat, low salt and low sugar recipes to meet HFSS guidelines. But as Jeremy warns, there is little time to restructure supply chains and source alternative ingredients before the law is enacted.