The government has intervened in a bid to prevent hundreds of millions of pounds’ worth of food industry ads from being banned under its looming junk food marketing regulations.
In a statement published today, the government said the ban was not intended to block brand advertising that did not identify specific HFSS products. It said it expected its interpretation to be reflected in final ASA guidance to be published soon.
The intervention comes after The Grocer revealed major food companies were planning to launch legal action amid claims the advertising ban would capture a whole series of ad campaigns in its net that were not the intention of the original legislation. The new rules are set to come into force in October.
A consultation launched by the ASA, which will act as policeman for Ofcom on the new rules, had suggested it would ban generic brand ads from companies producing HFSS products, even if the ads did not specifically include products.
The Grocer also revealed that advertising and supermarket bosses had warned the government that under the ASA’s interpretation their blockbuster Christmas ads, which are planned at this time of the year, faced being canned.
Last week, M&S chairman Archie Norman said its ad would probably be cancelled as a result of the ASA’s moves.
Today, however, health minister Ashley Dalton issued a statement in the House of Commons making it clear the government intended such brand advertising to be outside the scope of the laws.
“While it is for a court to interpret the legislation, the government’s view remains that pure brand advertising is not in scope of this policy,” said Dalton.
“This is because the legislation only restricts adverts that could reasonably be considered to be for identifiable less healthy products, and not adverts that could be reasonably understood to be advertising brands.
“This has been the consistent position of this government and was clearly stated to Parliament during the passage of the Health and Care Bill.
“We therefore expect that businesses will still have opportunities to promote their brands, provided that their adverts do not identify a less healthy product.
“For example, brands could promote their non-product attributes, such as corporate social responsibility commitments or customer experience, or advertise the healthier products within their portfolios.
“We do not expect the perception or association of a corporate brand with less healthy products to automatically bring an advert into scope of the restrictions. The government does not intend to prevent brands from advertising but instead intends to give businesses an incentive to innovate and create healthier products.
“We understand that businesses need clarity in order to plan and secure future advertising campaigns. We also recognise the considerable investment they have already made in preparing for the restrictions coming into force.
“The government has been clear that, whilst a robust regulatory framework is needed, we expect regulators to act in a way that supports economic growth and helps industry to make future investment decisions and innovate with confidence.”
While the ASA has not yet published the response to the consultation on its guidelines, Dalton said the government and the regulators “share the same aims: to offer clarity and support to businesses as these restrictions are introduced”.
“While it is of course for the regulators to act independently, we anticipate that they will want to act quickly and firmly on any obvious breaches of the law where a less healthy product(s) is clearly identified in an advert,” she added.
“However, in other instances and where the circumstances make it appropriate, in the government’s view, the law provides considerable discretion in how the available enforcement tools can be used positively to support a business to move to compliance over a period of time.”
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