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ASA overturns Kellogg's advert ban

This week, Kellogg has succeeded in having an adverse adjudication by the UK Advertising Standards Authority (the "ASA") overturned. In stark contrast to the original decision, the ASA has now ruled that Kellogg has not breached the BCAP Code, which applies to broadcast advertising and that the complaint is not upheld.

Kellogg has succeeded in having an adverse adjudication by the UK Advertising Standards Authority (the "ASA") overturned. This is the first decision to be overturned by the ASA since November 2017 in a year that the ASA dealt with over 27,000 complaints about more than 19,000 adverts.

The complaint was that Kellogg had breached the rules on advertising HFSS (high in fat, salt or sugar) products by broadcasting a TV ad for Coco Pops Granola cereal during the children’s programme Mr. Bean (https://youtu.be/l0JPLvPbZDY) (the "Advert"). This was originally upheld by the ASA in August of this year.

To obesity action groups, the original decision was a welcome decision in the fight against "junk food" advertising. However, from a food & beverage brand perspective, the decision was surprising because the Coco Pops Granola cereal (the subject of the Advert) is not itself an HFSS product and had been specifically developed to offer children a healthier alternative to the original Coco Pops cereal.

In both the original and revised decisions, the ASA acknowledged that Coco Pops Granola is not an HFSS product. Therefore, the crux of the investigation looked at the rules and guidance relating to whether the promotion of the Coco Pops Granola cereal indirectly promoted other HFSS products in the Coco Pops range.

The UK Code of Broadcast Advertising ("BCAP Code") requires that HFSS product adverts must not be broadcast around TV programmes commissioned for, principally directed at or likely to appeal to audiences below the age of 16. Related guidance also states that this restriction applies to direct promotion of an HFSS product (i.e. an advert about an HFSS product) and can also apply to indirect promotion (i.e. brand advertising) if it has the effect of promoting HFSS products. Therefore, the key point of consideration was whether the Advert had the effect of promoting an HFSS product through the use of branding.

In reaching its original decision in August 2018, the ASA held that Kellogg had given too much emphasis to the “Coco Pops” branding in the Advert, including use of Coco the Monkey, and had not given sufficient prominence to the Coco Pops Granola cereal product. In essence, the ASA claimed that the Advert was promoting the "Coco Pops" range of products (which included HFSS products) rather than just the Coco Pops Granola cereal product.

The ASA's original decision meant Kellogg would no longer be able to use any of their popular children brands, like Coco Pops and Coco the Monkey, to encourage children to move to healthier options, if those brands were also associated with other HFSS products.  

The CAP guidance recognises that adverts for non-HFSS products may use a brand-generated character (such as Coco the Monkey) or branding synonymous with a specific HFSS product, and also recognises the power of such brands to promote healthy alternatives to HFSS products. Therefore, advertisers who have carefully prepared advertising content to comply with the rules relating to HFSS products and to focus on the features of the non-HFSS product would have been confused by the original decision.

It was therefore not surprising that Kellogg decided to appeal the original decision and pursue the independent review process. Such appeals are made on the basis of there being substantial flaws in the ASA's decision and process. In light of the revised ASA decision released this week, it is clear that the ASA's independent adjudicator agreed that the complaint and the original decision should be reconsidered.

As can be seen in the revised decision published by the ASA on 21 November 2018, the ASA has considered the response by Kellogg in its appeal and overturned the original decision. As a result, in stark contrast to the original decision, the ASA has now ruled that Kellogg has not breached the BCAP Code, which applies to broadcast advertising and that the complaint is not upheld.

The response from Kellogg in its appeal highlighted a number of distinctions in the Advert:

  • Clear and consistent references were made to the Coco Pops Granola throughout the Advert;
  • The Advert did not contain any reference to the Coco Pops brand in isolation nor did it reference any other products in the Coco Pops range;
  • Coco the Monkey was seen with the Coco Pops Granola cereal throughout the Advert; and
  •  The Advert focused heavily on the packaging and the distinctive shapes of the Coco Pops Granola cereal, both different to other Coco Pops products.

The ASA's revised decision acknowledges that Kellogg had taken careful steps to ensure that the Advert did not have the effect of promoting the Coco Pops original cereal or other HFSS products in the range including the points raised above and that the main focus of the Advert throughout, including close-up shots of the product and packaging were on the Coco Pops Granola cereal. These features would make it clear to both children and adults that the product being advertised was the Coco Pops Granola cereal.

The revised decision on this Advert does not only affect Kellogg, but also has a greater impact on the industry as a whole. Concerns remain among obesity action groups and this topic is clearly a divisive one. Childhood obesity is a legitimate concern that must be taken seriously and yes of course it is important to curb the promotion of "junk food". However, in this particular instance, the product being advertised is not a "junk food". It does not fall within the definition of an HFSS product. It is a healthier alternative. Therefore, despite remaining concerns from obesity action groups and many others, a strong contingent will argue that this overturned decision does not hinder the childhood obesity strategy, but could ultimately assist it:

  • Brands have been working to create healthier alternatives, changing their recipes and reducing the HFSS content of existing products.
  • It seems to prudent to use their resources and investments in this manner and to capitalise on the appeal of existing brands to move adults and children away from HFSS products to healthier alternatives, rather than on the creation of new brand equity characters.
  • Some might even say that a child is more likely to try an alternative product from a range that it is familiar with, rather than a completely new product.
  • It also seems in line with the underlying objectives of the HFSS rules and guidance.
  • Any actions that promote the consumption of healthier alternatives to HFSS products must be seen as positive, and should be welcomed.

The ASA's current stance now appears to support this approach.

 

For more information on this topic, please contact Sonal Patel Oliva, David Bond or your usual contact within Fieldfisher's Brand Development Team.

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