What constitutes reasonable steps for age-targeting in HFSS adverts?
The ASA has upheld a complaint that a Facebook ad for Just Eat failed to use appropriate targeting to ensure an online facebook ad featuring foods that were high in fat, salt or sugar (HFSS) was not directed at under 16s. Just Eat.co.uk Ltd - ASA | CAP Upheld Internet 21 August 2024
The ad featured an animation of the Just Eat and McDonald’s logos and a chicken nugget, with text stating “Fancy a McMuffin in the morning? McNugget for lunch? Or a big night in with a Big Mac? Get them delivered right here”. Below that was a changing image of McNuggets that was replaced by the Just Eat and McDonald’s logos.
The complaint was brought by activist group, Bite Back, which was founded in 2019 by celebrity chef Jamie Oliver.
Just Eat did use Facebook Meta age-targeting tools. This meant that if an individual was registered as under 18 they would not have been able to see the ad at that time. Just Eat provided data obtained from Facebook which they said demonstrated that the ad had not been served to users who were registered as under-18 on the platform in December 2023. They confirmed that interest-based targeting had not been used as part of the targeting parameters for the ad.
Despite this the ASA said the aggregator app “had not taken sufficient care” to ensure that the ad did not reach under-16s on the platform. This was because it had not used “all additional targeting tools available to them” such as the “interest-based” targeting.
CAP Guidance on age-restricted ads online stated that marketers should be able to demonstrate that they had taken all reasonable steps, including using all additional targeting tools available to them, to ensure that HFSS product ads were directed at an audience aged 16 and over to minimise children’s exposure to them. The Guidance also stated that targeting solely on the basis of age data was unlikely to satisfy the requirements of CAP’s media placement restrictions for age-restricted ads online because of younger users (i) misreporting their age or (ii) different people shared the same device.
Summary: This is a timely reminder for those advertising HFSS products to use all targeting tools available to advertisers to best ensure ads are directed at over 16s.
Where AI and activist groups are scrutinising HFSS product advertising it is important that advertisers take all steps possible to protect themselves, the brand and show due diligence in their compliance steps.
From 1 October 2025 it is expected that provisions within the Health and Care Act 2002, will mean advertising restrictions of less healthy products (ie HFSS food within certain categories) on television and on-demand programmes before the watershed (from 9pm to 5.30am) and online 24/7 is due to come into force. The new Labour government have indicated their commitment to this timeframe by referencing this objective within the King’s Speech last month. Brand advertising, provided there are no identifiable HFSS products in the adverts, is expected to still be permitted. However, the King's Speech lacked the exact specifics of what these restrictions will entail.