The government will face a whole series of legal challenges to its “junk food “ advertising ban unless it acts to clear up confusion over its interpretation urgently, the boss of the FDF has warned .
Karen Betts told The Grocer this week that with the ban now just six months away, the industry was still in the dark about key details of what ads faced being outlawed.
While stressing the industry had accepted the HFSS ban was coming, Betts said that without clarification the proposals risked a major hit to food companies, flying in the face of the government’s growth strategy.
It emerged this week that ministers had rejected calls to amend the HFSS legislation, due to come into force on 1 October, from a series of trade bodies and leading food companies.
Last month the Advertising Standards Authority launched a consultation on the proposals, which it said would see branded ads fall under the new 9pm watershed, even if they were not specifically for “less healthy foods”, the products outlawed under the legislation.
The Grocer has revealed hundreds of millions of pounds of marketing spend for this year’s golden quarter are “in limbo” – including blockbuster Christmas ads from the supermarkets – due to the confusion over the detail. Leading sources have insisted the interpretation oversteps the intention of the original legislation.
“The ASA has made a substantive change to its draft guidance on brand advertising,” Betts told The Grocer. “Where the draft guidance was clear, it now isn’t. It suggests that a brand may not be able to appear in an advert even if it’s alongside a non-HFSS product.
“We’ve asked government to amend the regulation for clarity, and they’ve said they do not want to do this. If that’s the case, it would be helpful if they could state clearly to the ASA how the government interprets the law, and encourage the ASA to issue clear and workable guidance on this basis.
“It’s now very late in the day for campaigns airing after October, the majority of which have already been planned and potentially shot.
“Companies now don’t understand with sufficient certainty whether these campaigns will be within the law,” Betts added. ”If planned campaigns cannot now be run, there’s a sunk cost to the industry and advertisers of hundreds of millions of pounds. And food and drink companies will not commission further campaigns until they’re clear what is and isn’t allowed, so there’ll be a pulling back on investment with advertisers.”
Legal action
In February, The Grocer revealed food companies had instructed lawyers to prepare a possible legal challenge against the ban.
Betts said that she now expected multiple challenge in the courts, unless the government acted fast.
“If the uncertainty isn’t settled, what we’ll see is a spate of legal challenges to clarify the law. These will cost industry and the ASA a lot of money, which presumably isn’t government’s intention.
“Working out exactly how the advertising restrictions would be applied was always going to be complex. However, it’s been three years since the primary legislation passed and we still don’t have this.
“We’re now just six months away from the new advertising restrictions coming into force and yet the industry remains unclear on exactly what will and won’t be allowed under them.”
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