Mark Armstrong, Solicitor  

7 July 2021

The Australian Association of National Advertisers (AANA) has recently announced substantial updates to their Food and Beverages Code, which is due to come into force on 1 November 2021.  The new changes will have significant impacts for advertisers of food and beverage products in Australia, particularly those who market what is now defined as ‘Occasional Food and Beverage Products’, for example, confectionary, fast food, soft drinks, crisps or processed meats, and those whose food and beverage ads target children under the age of 15.  The AANA’s press release stated, “Food and non-alcoholic beverage companies will only be able to show advertisements for occasional foods when the proportion of children is 25% or less of the total audience. The threshold is currently 35% or less”.  Clearly, the AANA is implementing a big push to ensure advertising of unhealthy products to children is reduced as much as possible.

The most significant updates to the AANA Food and Beverage Code (Food Code) can be summarised as follows:

• The Food Code now states that advertising of Occasional Food and Beverage Products must not target Children;
• The definition of a child has been changed to ‘a person under the age of 15’, rather than ‘a person 14 years old or younger’;
• The criteria of what constitutes targeting Children has been updated; and
• The criteria of what constitutes a significant proportion of the expected average audience has been updated.

What are Occasional Food and Beverage Products?

The concept of an ‘Occasional Food and Beverage Product’ is already found in New Zealand’s Advertising Standard Authority (ASA) Children and Young People’s Advertising Code albeit with a different definition.  Under the updated Australian AANA Food Code, Occasional Food and Beverage Products are ‘food or beverage products which do not meet the Food Standards Australia Nutrient Profile Scoring Criterion’.  The Nutrient Profile Score needed to be met depends on whether the product is a:

• Category 1 product – i.e. beverages, which must have a Nutrient Profiling Score of less than 1;
• Category 3 product – certain cheeses, oils or oil spreads, margarine or butter, which must have a Nutrient Profiling Score of less than 28; or
• Category 2 product – neither a category 1 or 3 product, which must have a Nutrient Profiling Score of less than 4.

In simple terms, products that are high in energy (kj), saturated fat, sugars and sodium are very likely to be considered Occasional Food and Beverage Products, as their score will likely go over these limits.  For instance, chocolate bars, soft drinks, flavoured milk, chicken nuggets, fast food burgers, commercially fried foods, certain snack foods, crisps, lollies and other products like some frozen potato products, processed meats, and some dips and cooking sauces, are likely to be classed as Occasional Food or Beverage Products. However regular milk is not, as it is saved by its protein content, and some frozen chips are not, surprisingly, as they are saved by the protein or vegetable content.

Assessing whether or not an advertised product (including each component of a meal deal) meets the Nutrient Profiling Score Criterion is based on: (i) the nutritional information; and (ii) percentages of fruits, vegetables, nuts and legumes present in the product (i.e. your product will receive a Score reduction for fruit and vegetable content). If the product’s Nutrient Profiling Score is higher than the required number, it will be classified as an Occasional Food and Beverage Product and ads for this product cannot be marketed to children.  The details for calculating the final score are contained in Schedules 4 and 5 of the Food Standards Code, however, Food Standards Australia New Zealand has also developed a handy online calculator to assist in this, which can viewed at https://www.foodstandards.gov.au/industry/labelling/Pages/Nutrient-Profiling-Scoring-Calculator.aspx.

Targeting Children Criteria

Under the outgoing Food and Beverage Code, the targeting of children was assessed in relation to visual techniques used, the nature of the product, themes, perspective of the ad, language, age of characters and call to action.  Under the updated Food and Beverage Code, targeting of children (under the age of 15) is now determined by the context of the advertisement and the following criteria:

• Nature and intended purpose of the product being promoted is principally or significantly appealing to Children;
• Presentation of the advertising (e.g. themes, images, colours, wording, music and language used) is principally appealing to Children; and
• Expected average audience at the time or place the advertisement appears includes a significant proportion of Children.

This ‘Targeting Children’ criteria is identical to that used in the Children and Young People’s Advertising Code adopted by the ASA in New Zealand and brings Australian in line with our Trans-Tasman neighbours in this regard.

Significant Proportion of Expected Audience Criteria

Under the updated AANA Food and Beverage Code, in relation to the third ‘Targeting Children’ criterion above, measures to determine if children are likely to be a ‘significant proportion’ of the expected average audience may include one or a combination of the following:

• Where data exists, 25% or more of the predicted audience will be children (under the age of 15) – this makes the new requirement stricter than the previous 35% threshold.
• C&P programmes (i.e. for children and pre-schoolers).
• Programs, artists, playlists, video, movies, magazines or other content with significant appeal to children (e.g. featuring personalities or characters popular with children).
• Locations where children are likely to gather (e.g. schools or during any children’s sporting and cultural events).

Where accurate program audience data is not available, the Ad Standards Community Panel may have regard to other factors listed above such as the program content, the time or the location where the advertisement is being shown.

What all this means is, ads for Occasional Food and Beverage Products will be acceptable, if children will not be a significant proportion of the expected average audience, as they will not be seen to target children.  The ‘significant proportion’ requirement may end up ‘allowing’ in store point-of-sale advertising, (as the majority of people in a supermarket will be adults) however, there is no precedent in Australia just yet to confirm this.  Once the updated Code comes into force, it would be prudent to keep a close eye on any Ad Standards decisions to see how this particular issue is dealt with.

What about the RCMI and QSRI?

Under the outgoing Food and Beverage Code, advertisements for all food and beverage products which targeted children (in applicable media) had to comply with Schedule 1 of the Responsible Children’s Marketing Initiative (RCMI) or Schedule 1 of the Quick Service Restaurant Initiative (QSRI).  This meant that the ad was required to meet various obligations including represent healthier dietary choices and reference good dietary habits and physical activity.  The updated Code and Practice Note no longer make any references to the RCMI or QSRI and therefore, unless you are an RCMI or QSRI signatory, these instruments will not need to be complied with.  Instead a straightforward blanket ban on the advertising of Occasional Food and Beverage Products which targets Children has been put in place.

Sponsorships

The updated Code makes a specific reference to sponsorship advertising and states that, ‘Sponsorship advertising that targets children must not show an Occasional Food or Beverage Product, or such product packaging, or depict the consumption of an Occasional Food or Beverage Product.’  Sponsorship under the updated Code refers to a commercial relationship between the advertiser and a sporting or cultural property, event or activity.  This also includes naming rights of events or teams and the inclusion of brand names/logos at an event or on participant uniforms.  Companies that sell Occasional Food or Beverage Products can continue to sponsor teams and events, etc. However a clear sponsorship association should be made, the primary focus should be on the team/activity being sponsored and if any sponsorship ad features an Occasional Food or Beverage Product, that ad cannot target children.

Vouchers

Another big update to the Code is that advertisers must not ‘award’ children (i.e. give for free, or give away as prizes) Occasional Food or Beverage Products. Also, advertisers must not award vouchers that can be redeemed for Occasional Food or Beverage Products.  This includes vouchers for dollar amounts which can be used for Occasional Food or Beverage Products (i.e. a fast food voucher that might advertise healthy options, but can actually be used for unhealthy products on the menu).  This is likely in response to various complaints upheld by Ad Standards in relation to non-compliance with the QSRI requirement to not give away vouchers to children at sporting events for unhealthy food.  The golden days of receiving a McDonald’s voucher via a Man of the Match award at children’s sports have been a thing of the past for a several years now, but this has now been entrenched even more clearly in the updated Code.

Other changes

In other areas of the Code, certain sections have been slightly reworded but contain the same fundamental principles as the previous Code.

What does this mean for you?

Your marketing team will need to assess whether your advertising will comply with the updated AANA Food and Beverage Code when it comes into force from 1 November 2021.  This will be relevant now for campaigns in development which are intended to be on air beyond that time. From this date, if the advertisement:

• is for an Occasional Food or Beverage Product; and
• the ad targets children under the age of 15; and
• children under the age of 15 are likely to be a significant proportion of the expected average audience,

the ad will breach the updated AANA Food and Beverage Code.

It would be prudent to check in with your team, particularly if you predominantly sell Occasional Food or Beverage Products and ensure that your advertising approaches will continue to comply with all of the new updates to the Code.

Contact us

If you would like further information on the above and how it impacts on your business or that of your clients, please contact one of our experts below.

Mark Armstrong                                                                         Heidi Bruce

+61 2 8935 8809                                                                         +61 2 8935 8806

[email protected]                                                 [email protected]