Food and Drink Innovation Network

11th December 2007

Maria DondeCommittee of Advertising Practice

A guide to the advertising rules and regulations for the food industry

This morning:

1. How is advertising regulated?

2. Key principles of advertising regulation and factual, health related claims: knowing the rules

3. Functional foods: Significant ASA decisions

4. Help and advice for advertisers and marketers

How is advertising regulated?

Two separate industry bodies that write and enforce the codes of practice

ASA BroadcastRegulates TV and radio ads under contract from Ofcom

ASA Non-BroadcastIndependent of Ofcom, operates as it has done for over 40 years

BasbofBroadcast Advertising Standards Board of Finance

AsbofAdvertising Standards Board of Finance

Rules on complaints about ads in all media

The CAP Code

TV and Radio advertising standards codes

ASA & CAP

Advertising Standards Authority

• Operates a one-stop shop for advertising complaints

• Investigates complaints under the advertising codes

• Publishes adjudications online

• Independent of the industry and government

Committee of Advertising Practice

• Members are trade and professional organisations of the advertising and sales promotion industry

• Creates, reviews and amends the advertising codes

• Co-ordinates sanctions (with ASA) to ensure compliance with the codes

Media owners

Advertisers

Advertising Agencies

Write the Codes

Take action against offenders

Pay for the ASA

The role ofCAP/BCAP

How we’re funded

Levy collected by ASBOF / BASBOF

• Independent of ASA

• 0.1% levy on ad spend

• 0.2% on mailsort contracts

The ASA at work

The ASA’s remit

We cover Print and press ads Posters Direct mail Television and radio ads Competitions, special offers E-mail and text messages Banners and pop-ups Teleshopping Cinema commercials Promotions Some virals

We don’t coverx Packagingx Shop windows x Websitesx Telephone callsx Flypostingx Classified adsx Statutory / public notesx Press releasesx Political ads (election

campaigns)

Complaints & Investigations

• Approx 26,000 received each year

• 49% non-broadcast, 51% broadcast

• Assessed against the advertising codes

• No minimum number of complaints required

• Complainant’s identity is not revealed unless they have a competitive or other interest

• If case to answer, ASA contacts advertiser.

• Informal Investigation

• Formal Investigation

LordSmith

ASA Council

Sanctions• Adverse publicity

• Media refusal

• Withdrawal of trading privileges – including Mailsort Contracts

• Disqualification from industry awards

• Industry pressure

• Poster pre-vetting

• Referral to Office of Fair Trading / Ofcom

The Codes

BCAP TV Advertising Standards Code;Rules on the Scheduling of TV Ads; Code for Text Services (Teletext), Guidance for Interactive TV Services; Advertising Guidance Notes

•BCAP Radio Advertising Standards Code

•CAP Code of (Non-broadcast) Advertising, Sales Promotions and Direct Marketing

Basic principles

Advertising should be :

• Legal

• Decent

• Honest

• Truthful

• Socially responsible

• Clearly identifiable as marketing communications

How are the Codes different?• Harm, offence, misleadingess – no real difference

• Product categories:

CAP Code - statutory restrictions only, e.g. tobacco, prescription only medicines

BCAP Codes – because of the power and intrusiveness of broadcast advertising, additional restrictions on TV/Radio, e.g.: guns, pornography, most betting and gaming

Legality• CAP Code clause 50.11:

50.11 Medicines must have a marketing authorisation from the MHRA before they are marketed and any claims made for products must conform with the authorisation. Medicinal claims should not be made for unauthorised products. Marketing communications should refer to the MHRA, the authorisation or the EC only if required to do so by the MHRA.

• TV and Radio codes similar rules (8.2.3 AND Section 3, 4.5 and 12)

• Food law administered by TSOs

• Medicines law administered by the MHRA

• New EC Regulation on nutrition and health claims made on foods

Men in white coats

Men in white costs = permission to believe

Complicated pseudo-scientific explanations of what a product is or how it works, including technical diagrams and language, can mislead.

• It MAY be acceptable, but this approach carries risks and scheduling restrictions apply to certain broadcast ads for vitamins and dietary supplements.

• It may also be a problem for general advertising of functional foods.

Misleadingness & Substantiation

• No ad may mislead directly or by implication, exaggeration, ambiguity or omission

• Advertisers / broadcasters must hold evidence to support all claims before publication / broadcast

• Ads should be presented in a way that makes clear they are commercial communications

Substantiation

• Clause 50.1

“Medical and scientific claims … should be backed by evidence, where appropriate consisting of trials conducted on people … Substantiation will be assessed by the ASA on the basis of the available scientific knowledge”

• CAP Help Note on Substantiation for Health, Beauty and Slimming Claims (see www.cap.org.uk)

Prove it• Consumer surveys won’t prove a scientific claim

• General evidence for health benefits of a food or food ingredient may not be acceptable for a specific product

• Claims to maintain health need a high level of proof including (independent) product-specific tests, controlled and double-blinded

• Medicinal claims for unlicensed products are prohibited

Help Note on Substantiation…

• Collate data to form a body of evidence (the “totality” of evidence is important) when proving “new” or “breakthrough” claims (pt. 3)

• Evidence should normally include at least one adequately controlled experimental human study (pt. 3.3)

• If studies have not been published in reputable, peer-reviewed journals, an objective review should be carried out by a suitable qualified expert (pt. 3.4)

• Name of expert and review made available on request

ASA’s/CAP’s Use of Experts

• Sufficiently qualified to offer an impartial, competent and considered view

• Attempt to reflect generally accepted expert opinion

• Criticisms of our reviews are welcomed, so long as they’re objective

• Meeting between experts a possibility if disagreement on subjective interpretation of data

References to Ailments• Clause 50.3

“Marketers should not discourage essential treatment. They should not offer specific advice on, diagnosis of or treatment for serious or prolonged conditions unless it is conducted under the supervision of a doctor or other suitably qualified health professional.”

• CAP Help Note on Health, Beauty and Slimming Advertisements that refer to Ailments (see www.cap.org.uk)

Redbush Tea

Danone Activia

Dairy Crest

“More Omega 3 may enhance some children’s concentration and learning”.

Kellogg’s

Danone Actimel

UK Tea Council

Innocent

Hero – Fruit 2 day

Flora ProActiv

EC Regulation & the ASA: Some Questions

• How will the new regulations affect the ASA?

• How do the Codes reflect legislation? Will they change?

• How will this effect the industry?

Getting help, staying informed and working together

You: The Industry•CAP and BCAP are not closed organisations

•Committee members attend meetings and agree Code policy and development issues.

•CAP and BCAP Members include ISBA, IPA Broadcasters, Royal Mail, trade bodies etc ..

•Industry guidance is sought through the CAP panels: General Media Panel; Sales Promotion and Direct Response Panel.

Code changes

• Arise from:

- Significant public concerns

- Consumer standards and expectations

- Nature of the medium - Forthcoming Code Review

Broadcast Advertising • BCAP does not advise on individual ads (but can

offer a broad interpretation of code rules)

• TV: BACC clears scripts and commercials for the majority of channels. A few channels clear their own ads

• Radio: talk to RACC

• All codes at www.cap.org.uk

CAP Copy Advice Service

- Free

- Confidential

- Fast (within 24 hours)

- Help to avoid future problems with the ASA

- We’ll support your case to the ASA

The team will look at past ASA adjudications, CAP Compliance work and previous advice to provide guidance on the likely acceptability of the copy in question.

Help Notes

• Provide a comprehensive guide to a given sector or issue, for example:- Substantiation

- Ailments - Advertising Food to Children

• All are available on our website: www.cap.org.uk/cap/advice_online/help_notes/www.cap.org.uk/cap/advice_online/broadcast_help_notes/

Advice Online

• A regularly updated searchable database of advice for non-broadcast marketing communications.

• Entries will change with landmark decisions by ASA.

• Visit our website to search the database:

www.cap.org.uk/cap/advice_online/

Update@CAP

• Free quarterly e-mail newsletter

• News on High profile and landmark ASA Adjudications

• Code changes and developments

• Compliance Reports

• Common problems and how to avoid them

• Training and Events, including Advice:am seminars

• Subscribe at www.cap.org.uk

Any Questions?

Thank you