From insta-perfect plates of food, to quick-read reviews from respected bloggers; there’s no denying that social media can be an effective way to promote food and drink brands and enhance brand advocacy. But falling foul of the relevant advertising rules and regulations risks clashes with the regulatory bodies and potentially, reputational damages.
Who is responsible?
The Advertising Standards Authority (ASA) enforce the Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code). Brands and influencers are held equally responsible for non-compliance with the CAP Code. Brands and influencers should therefore not only be familiar with this code, but understand it.
Food and drink advertising and children
In 2019, The Office of Communications (Ofcom), the United Kingdom’s (UK) communications regulator, reported that 71% of the 12-15 year-olds surveyed had a social media profile and 21% of children between 8-11 years old had a social media profile. And yet, there are regulations which prohibit advertising certain food and drink items to this cohort, including via social media. An obvious category is alcohol, but products that are high in sugar, salt and fat and those which make nutritional claims are also regulated.
Social media platforms can be separated into two categories, those for which a log-in is required to view content (such as Instagram or Snapchat) and those for which one is not (such as YouTube, Twitch or Pinterest). Special care should therefore be exercised when advertising on social media platforms for the latter category, as it is difficult to establish the percentage of users who are of or under a certain age.
Alcohol
Alcohol advertisements, including those on social media, must not target or appeal to anyone under the age of 18, nor feature anyone consuming alcohol who is or looks under the age of 25; among several other key rules.
We have recently published an article on the importance of influencer agreements when promoting alcohol products on social media and we provide training and advice to businesses on this very topic, as well as, more generally, on using influencers to promote products and services. It is of fundamental importance that those who sell and advertise alcohol understand the rules on marketing alcoholic drinks on social media. It may also be sensible for alcohol brands to consider the relevant rules when promoting their non-alcoholic products too. Not least because, if advertised alongside their usual alcoholic products – the non-alcoholic products may be perceived by advertising regulators as a gateway product to the brand’s alcoholic products.
High sugar content
As with alcoholic drinks, brands whose products fall under the Department of Health’s “HFSS” category (High in Fat, Salt or Sugar) must comply with the relevant rules when advertising such products on social media platforms. For example, HFSS product advertisements that are targeted directly at pre-school or primary school children must not include licensed characters or celebrities popular with children (rule 15.15 CAP Code). This section of the CAP Code was breached when the Care Bears were used to advertise Kinder Chocolate Bars on a YouTube channel whose primary audience was children under 16 years of age.
Additionally, advertisements for HFSS products are prohibited from appearing on so-called “mixed-age media” platforms, meaning where more than 25% of its users are under 16 years old (rule 15.18 CAP Code) – this typically means platforms like TikTok and Snapchat, but this does not mean that other social media platforms are less of a risk for advertisers.
The ASA is taking steps to encourage brands and advertisers to make better use of the social media platform’s ad targeting tools; this should help limit the number of HFSS products being advertised or promoted to under 16 year old users on mixed-age media platforms. For example, the “Chewits” brand breached the CAP Code when advertising on Facebook because, though their ads did not target children under 16 years old, it would have been “pushed out” to users who were registered as under 16 and was visible on the brand’s Facebook page to users registered as under 16, even if the users had not liked or followed the page. This is because the brand had not restricted the audience of their Facebook page to those users registered as aged 16 or over. Neither had they utilised the interest-based settings to target their individual Facebook posts to the newsfeeds of those aged 16 or over.
The ASA also have the power to ban ads where the advertiser is unable to provide robust evidence that over 75% of the target audience are over 16 years old.
Food and drink nutritional claims
Another area where brands should be cautious, irrespective of the age of the advertisement audience, is where it makes nutritional claims. This is something that the ASA stringently monitors and actively challenges claims which breach their rules on the same. For example, the ASA ruled against Organic Burst for an Instagram ad which promised the consumer it would help them “look and feel amazing fast”. The ASA ruled that, as per rule 15.2 of the CAP Code, “references to the general benefits of a nutrient or food for overall good health or health-related well-being were acceptable only if accompanied by a specific authorised health claim.”
Alcohol
The CAP Code states that the only permitted nutrition claims a brand can make in relation to alcohol are “low-alcohol”, “reduced alcohol” and “reduced energy” if certain requirements are met. In January 2021, Brewdog ran an advertisement campaign on Instagram which claimed that their Hard Seltzer product was “only 90 calories per can” and had “no carbs or sugar”. These claims were therefore regarded as implying a health benefit to the customer which is not permitted for alcoholic beverages; had the claim simply stated that the drink had “90 calories”, this would have been purely factual and therefore would likely be acceptable in the ASA’s eyes. The ad also contained the claim that the drink contained “a little bit of alcohol”. But the drink in question was not technically “low-alcohol” because it had an alcohol content of more than 1.2% ABV and therefore, the ASA ruled that the claim “a little bit of alcohol” was likely to mislead the consumer. Brewdog accepted that they breached the CAP Code and ceased using these terms.
The risks to food and drink brands
Ultimately, there is a risk of reputational damage in respect of social media slip-ups, and these are best avoided by careful consideration of the rules and undertaking proper due diligence prior to using influencers to promote products on social media. It is important for a brand to have a comprehensive influencer strategy which carefully considers the rules and regulations to mitigate the risk of reputational damage to the brand.
We can provide guidance on all aspects of social media brand promotion, including giveaway rules, considering the use of influencers, and providing training to your marketing team. For example, our specialist legal advisors recently delivered successful influencer marketing training to Thatchers Cider Company – helping the Thatchers marketing team to understand the relevant regulations and how best to minimise the risk of getting it wrong.