Supplementary written evidence submitted by the Advertising Standards Agency

I was pleased to give evidence to the Committee earlier this week and I wanted to follow-up with some observations about the application of the Advertising Code online, a theme that the Committee has explored. I'd also like to make some observations, for the record, about the evidence given by Ofcom on 31 October.

The relative strength of online ad regulation compared to broadcast ad regulation was raised at the start of my evidence to the Committee. To be clear, the UK Advertising Codes apply equally to advertising online; including to companies' own advertising claims on their own websites, social media spaces, apps and advergames. The robust enforcement of those rules is demonstrated by the fact that 88% of the 7,099 ad campaigns changed or banned by the ASA last year were online in whole or part.

To use an example of the parity of standards, the ASA is enforcing a strict ban on the placement of ads for food which are high in fat, salt or sugar (HFSS) in children's online media. That means online food advertisers are subject to the same strict restrictions as they face on TV. Namely, HFSS ads aren't allowed to be directed towards children and where children do see HFSS ads in general audience media, our strict content rules ensure they cannot endorse or encourage poor nutritional habits or an unhealthy lifestyle for children.

The ASA has been enforcing those online restrictions robustly and we believe they are being widely complied with. Some of the handful of cases brought to our attention since the ban was enacted have met with tough ASA rulings. I've included copies of our rulings in cases against Mondelez UK Ltd, Cloetta UK Ltd and Swizzels Matlow Ltd.

The 31 October session with Ofcom considered whether greater controls, beyond 'the law of the land', were needed for platforms such as YouTube. That reflects the active debate currently underway on whether harmful online content should be subject to further regulation. However, advertising on YouTube and other online platforms shouldn't be confused with other types of unregulated (non-advertising related) content.

As I set out above, the Advertising Codes apply just as clearly to online ads as to those on TV. Compliance with the Advertising Codes is mandatory and the ASA's rulings have universal coverage. Advertisers cannot opt-out of them and we have a range of sanctions to ensure compliance, including working with online platforms, which carry the same level of responsibility under the Code as any non-broadcast media owner, to remove bad ads. Ultimately, our legal backstop National Trading Standards is in place to prosecute non compliant online advertisers who persist in misleading their audience. Such action is rarely necessary - I used the example of the prosecution of 'copycat website' owners when I gave evidence - but the statutory backstop is in place to secure compliance where needed.

The ASA is delivering effective regulation of online ads, working with the large online platforms to ensure irresponsible ads are removed. We recognise that the pace of change online is contributing to people's concerns and we have work to do to become even more effective in our online regulation. That's why our new strategy, More Impact Online, focuses on how we will strengthen further the regulation of online ads over the next five years.

Notwithstanding that, if the Committee is minded to recommend statutory regulation of online advertising, we ask that it recommends that the ASA be involved in designing any new regulatory framework to help ensure that any regulatory changes preserve, strengthen and build on the ASA system rather than undermine it.

I hope these comments can be shared with members of your Committee as you come to consider your recommendations. We're ready to offer any further assistance and support as you continue your deliberations.

Guy Parker

Chief Executive

November 2018

Upheld

Internet (on own site)

 04 July 2018

Ad description

A website for a joint promotion between Cadbury and the National Trust for Scotland, and downloadable content for Cadbury, seen on 22 March 2018:

a. The website for the joint promotion https://easter.cadbury.co.uk, featured the heading “Enjoy Easter Fun” and an image of a rabbit holding an Easter egg wrapped in purple foil with the words “Join the Cadbury Easter Egg Hunt” written on it, using the Cadbury logo. Smaller Cadbury-branded purple foil wrapped chocolate eggs and Easter bunnies were alongside. Text underneath stated “Looking for a way to make Easter magical? You’ve found it! Read on for tips, treats and fun things to make and do”. Further down the page, website visitors could download a storybook and an activity pack.

b. The storybook, titled “The Tale of the Great Easter Bunny”, featured an image on its cover of the Easter bunny wearing a purple waistcoat and holding a purple egg. The story featured children on an Easter egg hunt looking for purple Easter eggs that were hidden by the Easter bunny, who lived in a purple warren where he kept a chest full of purple Easter eggs. The final page featured the text “Cadbury wishes

you a Happy Easter” on a purple background.

c. The activity pack, titled “Eggciting activities”, featured an image of a rabbit holding a Cadbury-branded purple egg on its first page, with smaller Cadbury-branded purple chocolate eggs and Easter bunnies alongside. A similar image appeared at the bottom of each page.

Issue

The Obesity Health Alliance challenged whether the ads were for products that were high in fat, salt or sugar (HFSS product ads) that were directed at children.

Response

Mondelez UK Ltd t/a Cadbury said that all their promotional campaigns were targeted at parents and adults rather than children. The ad was part of the Cadbury website and advertised their partnership with the National Trust for Scotland, specifically the Cadbury Easter Egg Hunts and trails that took place at National Trust

for Scotland’s properties. They said the website was advertised only in media targeted to adults: Facebook and Instagram ads targeted to users registered as over 18 and categorised as a ‘Parent’; ads on a parent-targeted section of a news website; and in a TV ad which had not been shown around programmes for under 16s or programmes likely to appeal particularly to under 16s. They therefore believed that only adults were likely to have visited the website. They provided data showing the route by which consumers had visited the website, and Google Analytics data relating to the demographic profile of website visitors, but noted that Google was not able to track users below the age of 18 and the data therefore only related to website visitors aged 18 or over.

Cadbury said the website and the content on it were aimed at parents and adults as inspiration and tools for them to use with their families in the lead up to, and over, the Easter weekend. They said the website and its content were not of particular appeal to children and the call to action was for adult family members to consider whether they would like to take their families to one of Cadbury’s Easter Egg Hunts. For example, wording such as “The Tale of the Great Easter Bunny tells the story of the Easter Bunny and encourages families across the nation to take part in their own magical Easter Egg Hunts together”, “Keep your family busy during the Easter holidays with our eggciting activity pack” and “Have some fun in the kitchen? With a little help from Cadbury (and your own little helpers!)” was specifically directed to parents to engage the whole family in the activities.

Cadbury said the downloadable storybook was designed as a book for the whole family to enjoy together. The author was a personality known by parents rather than children, and the book did not include any Cadbury branding to ensure that no direct links would be made between Cadbury, Cadbury products and the story told in the book. While the book was downloadable from the website, children would be listening to it as told by adults and so would not make any connection with Cadbury or any of their products.

They said the Easter Egg Hunt depicted in the story was positioned as a family activity to mark a key seasonal occasion in which the Easter Egg Hunt was led by the parents, with the children in the story hunting for clues and never being shown interacting with the chocolate on their own. The book did not feature any unwrapped chocolate either in the artwork or the story and the chocolate was shown in moderation for sharing amongst the family. They said they were also careful to ensure the artwork and graphics (for example the font size) was more graphic and adult in style to appeal to the intended family audience. They added that the Great Easter Bunny was not a new character devised by Cadbury; it was a historical Cadbury character and “The Tale of the Great Easter Bunny” had featured on TV, in print advertising and on point of sale materials in the past.

Cadbury acknowledged that the activity pack included Cadbury branding but they said it would not be visible to children unless their parents or an adult provided it to them; the pack contained fun activities for parents/adults to enjoy with children. They said the messaging about the pack on the website and in the pack itself was directed at adults and the content was drafted in such a way that adults would be required to help their children.

Cadbury also explained that other downloadable content on the website – an egg hunt pack and recipes – were also designed for adults to share with children and the content did not appeal to children in their downloadable formats. They said that the medium for promoting the downloadable content was carefully selected and limited to the website. They believed that the content should not be assessed as a separate medium from the website without taking into account the platform on which they had been made available, and the overall context in which they had been promoted; as content directed to parents on a platform targeted to adults.

The National Trust for Scotland said they were a charity established for the purpose of promoting access to and enjoyment of places of historic interest and natural beauty in Scotland, amongst people of all ages. In recent years they had placed emphasis on promoting those spaces to families and had carried out improvements to provide better family amenities such as play parks, play equipment and family spaces. One of the ways in which they had promoted their properties to families was through Easter events such as the Cadbury Easter Egg Hunt.

The Easter Egg Hunts involved a series of activities for the whole family which aimed to get families to be more active, enjoy outside play and engage with nature. All hunts and trails were designed to be educational and active and introduce families to the nature, history and significance of the properties. The trails took between 30 and 60 minutes to complete and families tended to stay in the properties afterwards to enjoy the outdoor spaces and other facilities on offer. They said the key promotional message for the Trust in the ad was to encourage families to visit the properties and enjoy an active and educational experience in safe open spaces.

The National Trust for Scotland highlighted that while the website related to their joint promotion with Cadbury – the Cadbury Easter Egg Hunt – the downloadable content (ads (b) and (c)) did not contain reference to their name, logo or events and therefore did not promote the National Trust for Scotland.

Assessment

Upheld in relation to ads (b) and (c) only

Ad (a) was a section of the Cadbury website, which featured Cadbury branding (including the logo and use of Cadbury purple) and images of Cadbury Easter- themed chocolate products, which were all HFSS. The website was therefore an HFSS product ad for the purposes of the Code. Ad (c), the activity pack, also featured the Cadbury logo, Cadbury purple colouring and images of Cadbury Easter- themed HFSS products, and was therefore also an HFSS product ad for the purposes of the Code. Ad (b), the storybook, featured Cadbury purple colouring throughout the book, including a purple border with the Cadbury milk ‘splash’ on

each page, the Easter bunny’s waistcoat and front door, and drawings of purple chocolate eggs. The final page featured the text “Cadbury wishes you a Happy Easter” on a purple background. We considered that in the context of a Cadbury- branded storybook, the purple chocolate eggs shown were identifiable as Cadbury products, and because those products were HFSS products we considered the storybook was also an HFSS product ad for the purposes of the Code.

The website was primarily focused on providing information about the Cadbury- sponsored Easter Egg Hunts at National Trust properties, including a search tool to find Hunts, and we understood that the majority of people who visited the website had engaged with it on that basis. We considered the website was directed at adults through its presentation and content and therefore concluded it was not directed at children through the selection of media or context in which it appeared. We therefore also considered whether its audience was comprised of over 25% under 16s. We noted that it had only been advertised in media targeted to adults (particularly parents), and that the data from Cadbury showed that just over a third of people visiting the website did so after following a link from the nationaltrust.org.uk website, a third did so through search engine organic search results, and just under a quarter arrived at the website directly. While Cadbury was not able to provide data showing the demographic profile of visitors to the website, we considered it was unlikely that over 25% of its visitors were under the age of 16.

We acknowledged that the downloadable content was accessed by visitors to the website, who we considered would be predominantly adults. However, we considered that while children might engage with the storybook and activity pack in the presence of, or under the supervision of, adults, both were specifically created as content for children under 16 years of age and would be given to children to use. We considered the storybook and activity pack were therefore directed at children through the selection of media.

We concluded that the website was not directed at children and that it was unlikely that over 25% of its audience was under 16, and that it therefore was not in breach of the Code. We concluded that the storybook and activity pack were HFSS product ads that were directed at children through the selection of media and that they therefore were in breach of the Code.

Ads (b) and (c) breached CAP Code (Edition 12) rule 15.18 (HFSS product ad placement).

We also investigated ad (a) under CAP Code (Edition 12) rule 15.18 (HFSS product ad placement), but did not find it in breach.

Action

Ads (b) and (c) must not appear again in the form complained about. We told Mondelez UK Ltd t/a Cadbury to take reasonable steps in future to ensure that HFSS product ads were not directed at children through the selection of media or the context in which they appeared, and not to use any medium to advertise HFSS products if more than 25% of its audience was under the age of 16.

Upheld

Internet (social networking)

 04 July 2018

Ad description

Four posts on Chewits’ “Chewie the Chewitsaurus” Facebook page, seen in January 2018:

a. A post published on 24 August 2017 featured a cartoon image of Chewie with brightly coloured balloons and bunting. Letters on the bunting spelled “GOOD LUCK”. The Chewits brand logo was in the corner. Text accompanying the image

stated “Today’s the day! Celebrate your GCSE Results with Chewie. Click to like and share your exam success!”.

b. A post published on 4 September 2017 featured a cartoon image of Chewie next to stationery and a clipboard with the text “SEPTEMBER BACK TO SCHOOL” on it, and the Chewits brand logo in the corner. Text accompanying the image stated “Chewie is ready for a SWEET school year! Click LIKE and SHARE your back-to- school sweet treat ideas!”.

c. A post published on 13 September 2017 featured a cartoon image of Chewie holding an open book, next to large colourful text which stated “CELEBRATE ROALD DAHL DAY”, with the Chewits logo in the corner. Text accompanying the image stated “It’s Roald Dahl Day! Why not go and grab yourselves some ‘scrumdiddlyumptious’ Chewits treats? Click to LIKE and SHARE with Chewie!”.

d. A post published on 23 October 2017 featured a cartoon image of Chewie reading a book, next to shelves of books and the text “International School Libraries Month”, with the Chewits logo in the corner. Text accompanying the image stated “It’s

#booktober! Here’s one from Chewie’s joke book: ‘What do you call a dinosaur with extensive vocabulary?’ …A thesaurus! LIKE and SHARE”.

Issue

The Children’s Food Campaign (Sustain) challenged whether ads (a), (b), (c) and (d) were ads for products that were high in fat, salt or sugar (HFSS product ads) that were directed at children.

Response

Cloetta UK Ltd said the posts only appeared on their Facebook page, and the campaign was aimed at parents and young adults with the core messages and placement focused on those groups; it was not developed to target under 16s. They provided statistics based on data from Facebook analytics which related to an aggregated 28-day overview of Facebook users who followed their Facebook page and were based on an overview of likes of the page. They said the figures could shift over the monthly period based on the number of individuals who ‘unliked’ the page or if they gained new followers. Facebook analytics accumulated data based on the information that its users provided, so it would be based on data collected from the pages of Chewits’ followers, including their profile ages, location and so on. That

data was provided to Facebook by users themselves.

Cloetta said the data showed that the vast majority of visitors to the page consisted of adults: in July 2017, 81% of consumers who interacted with the page were 18 years of age or over; in January 2018 that figure had increased to 87%. Of the 13% of users who were aged under 18 in January 2018, a significant proportion were 16 and over. They said they did not have information about the percentage of internet users who were not logged into Facebook when they visited the page.

Assessment

Upheld

The CAP Code required that HFSS product ads must not be directed at children through the selection of media or the context in which they appeared. The four ads appeared on the Chewits Facebook page and featured “Chewie the Chewitsaurus”, a brand equity character associated specifically with Chewits. While the ads did not feature images of the product, they were easily identifiable as ads for Chewits, an HFSS product. The posts were therefore HFSS product ads for the purposes of the Code.

The ASA considered that consumers were unlikely to use Facebook or interact with advertiser’s Facebook pages unless they were signed in to their Facebook account. Businesses using Facebook were able to advertise to consumers through paid-for ads but also through posting non-paid-for content on their own Facebook pages.

Those posts were ‘pushed out’ to the Newsfeeds of Facebook users who had liked or followed their page. Facebook users who had liked or followed the page of a business were therefore likely to see posts from that business in their Newsfeed and may also sometimes visit the Facebook page of the business and look through its content. Facebook users who had not liked or followed a businesses’ page might also visit the page.

A small percentage of Facebook users who had liked or followed Cloetta’s Facebook page were registered as under the age of 16. The ads would therefore have been ‘pushed out’ to some Facebook users who were registered as under 16, and visible on Cloetta’s Facebook page to users registered as under 16 who had not liked or followed the page. We noted that the ads had therefore been directed to some children aged under 16. The posts would also have been visible to the friends of those who had liked or shared the posts, which all four ads specifically encouraged,

and we noted that the ads might therefore have been further pushed out to children under 16.

We considered that because the ads were for HFSS products Cloetta should have taken reasonable steps to ensure the ads were not directed at any children aged under 16.

We understood that businesses had three key tools available to them which they could use to restrict the audience of their page and individual posts, and to target posts to specific groups. Firstly, advertisers were able to set age restrictions to limit who could see and like their Facebook page, based on the registered age of the Facebook user. Secondly, when posting content on Facebook, advertisers were able to restrict the audience of a post by age, again based on the registered age of the Facebook user. Thirdly, advertisers were able to target their posts to the Newsfeeds of certain groups of people based on their interests (although that did not prevent people outside those interest-based groups from seeing the post on the advertiser’s own Facebook page).

We considered that because the Facebook page related specifically to an HFSS product Cloetta should have used the tool available to them to prevent Facebook users who were registered as under 16 from viewing the Chewits Facebook page. We understood that adding that age restriction would also prevent their posts from being seen by any users registered as under 16 (including if the post had been liked or shared by users registered as 16 or over). Additionally, because we were concerned that many younger users of social media misreported their age to appear older than they were, we also considered that Cloetta should have used the tool available to them to use interest based factors to ensure that the ads were only targeted to appear in the Newsfeeds of Facebook users who were aged 16 or over.

Because Cloetta had not used any of the tools available to them to restrict the audience of the posts and to target the posts to those aged 16 or over, we concluded they had not taken reasonable steps to target the ads appropriately. The ads were therefore in breach of the Code.

The ads breached CAP Code (Edition 12) rule 15.18 (HFSS product ad placement).

Action

The ads must not appear again in the form complained of. We told Cloetta UK Ltd to ensure they took reasonable steps in future to ensure that HFSS product ads were not directed to those under the age of 16. That included, for example, restricting the audience of their Facebook page (and therefore their posts also) to those users registered as aged 16 or over, and specifically selecting interest based factors to target their individual Facebook posts to the Newsfeeds of those aged 16 or over.

Upheld

In-game (apps)

 04 July 2018

Ad description

The advergame app ‘Squashies World’, from Swizzels Matlow, seen in January 2018, featured a game in which players matched pairs of Squashies by flicking them towards each other, at increasing levels of difficulty.

The first time players opened the app after it was downloaded they were required to enter their age. Text stated “Squashies World You must be 16 years or over to play this game. Enter your Date of Birth”. Three boxes underneath featured the day, month and year on which the app was opened, which users could change before clicking on an arrow to proceed into the app.

The app’s home page featured images of three Squashies products, with text stating “PLAYTIME”, which took players to the game “CHOOSE A LEVEL”, which allowed players to select a level of difficulty, and “TEASE ME”, which brought up a page with text that stated “Squashies are a delicious range of sweets from Swizzels” with images of packs of different types of Squashies scrolling underneath.

Selecting “PLAYTIME” began an animation which featured cartoon images of anthropomorphised Squashies with text that stated “All is well in Squashies World…Until one day a tornado hit! Help the Squashies find their partners …” followed by instructions on how to play the game.

The advergame was downloadable from the Google Play and Apple app stores, which were linked to via the www.swizzels.com website.

Issue

The Children’s Food Campaign (Sustain) challenged whether the Squashies World advergame was an ad for products that were high in fat, salt or sugar (HFSS products) that was directed at children.

Response

Swizzels Matlow Ltd said the Squashies World game could be downloaded from app stores and was referenced on the back of some Squashies packs and on the

Swizzels website. They did not use paid-for advertising to promote the game and so the chance of consumers finding it through anything other than a specific search for Squashies on the app stores was very slim.

On the packaging, consumers were directed to the Squashies World website, where they landed on a plain red screen with no branding, with the text “How old are you? You must be over 16 years of age to view this page. Please tell us your date of birth below”. After entering their date of birth, website visitors must then click on the “download now” option for the app store they used. On opening the app for the first time consumers were presented with another age gate on a plain screen within the actual game, and the message “You must be 16 years or over to play this game”.

They said that anyone accessing the game therefore would need to get through a minimum of one age gate, and most likely two, because most people would access the game via their website. They felt that the age gate prevented under 16-year-olds from accessing the game. They did not have data on the demographic profile of consumers using the game, but they believed they would be 16 or over based on the restrictions they had put in place. They said the game was very challenging, with 80 levels, and was not designed for under 16s. They recognised that two people who had left reviews of the app described how their children had enjoyed the game, but highlighted that those reviews dated from before the age-gates were added to the website and app.

The app had been given an age-rating of “4+” by the Apple store, and a content rating of “PEGI 3” by the Google Play store. Swizzels Matlow explained that both stores automatically calculated the ratings through a series of questions posed to the developer. Both included a specific question as to whether the app was primarily for kids (under 13 in the Google Play store and age ranges up to 11 in the Apple store). In both cases Swizzels Matlow had confirmed the app was not for children.

Assessment

Upheld

The CAP Code required that HFSS product ads must not be directed at children through the selection of media or the context in which they appeared, and that no medium should be used to advertise HFSS products if more than 25% of its audience was under the age of 16. The “Squashies World” game featured images of anthropomorphised Squashies sweets and a section which featured pack shots of the various Squashies products. The app was an advergame for the HFSS Squashies product range, and was therefore an HFSS product ad for the purposes of the Code. The ASA considered that marketers should take reasonable steps to target HFSS product ads appropriately.

The game had not been promoted other than through Swizzels Matlow’s social media for Squashies, on its website, and on packaging. We considered that most

consumers who downloaded the game would have become aware of it through those means and that it was unlikely that consumers would have come across it in the app stores unless they were specifically searching for it. Consumers who downloaded the

app were therefore likely to be people who had bought Squashies, who were connected with the brand via social media, or who had visited the Swizzels Matlow website to find out more about the company, its brands and products. We considered it was likely that a high proportion of children under 16 had seen the references to the game on the back of Squashies packs in particular.

When visiting the page on the website which described the app and linked to the app stores, website visitors were informed that they must be over 16 years of age to view the page and asked to enter their date of birth. The same age-gate also appeared the first time the app was opened after it was downloaded. We noted it was possible to continue to re-enter new dates of birth after an ineligible date was entered and considered the age-gate was therefore in most cases unlikely to deter children under 16 from continuing.

We acknowledged that Swizzels Matlow had told the app stores that it was not specifically for children, but because it was rated as suitable for ages 3+ and 4+ on those stores, we considered consumers would understand that the app was suitable for children aged under 16. The written description of the app did not use language particularly aimed at children, but we considered that the images of the colourful, cartoon-based gameplay and the overall description of the game were likely to appeal to children.

The game itself was brightly coloured and used a cartoon-style to animate the sweets, some of which wore sunglasses or bows. We considered children would find that overall presentation, along with the initial animation which described the premise of the game, particularly appealing. While some of the later levels of gameplay were quite difficult, the earlier levels were very simple and would be easy for young children to complete. We considered the review comments which referred to children enjoying the game demonstrated the game’s appeal to children.

In light of the above, we considered that the app was not directed at children under 16 through the selection of media. However, we considered that it had considerable appeal to children under 16, and that because of the media in which consumers were directed to it (particularly because it was featured on Squashies packs) and the likelihood that the age-gates would not deter those under 16 from downloading and playing the game, it was likely that a significant percentage of its audience was aged under 16. In that context, we considered it was incumbent on the advertiser to demonstrate to the ASA that children under 16 did not comprise more than 25% of the audience. In the absence of any audience data demonstrating that the app had been appropriately targeted, we concluded it was in breach of the Code.

The ad breached CAP Code (Edition 12) rule 15.18 (HFSS product ad placement).

Action

The ad must not appear again in its current form. We told Swizzels Matlow Ltd to ensure in future that they did not use any medium to advertise HFSS products if more than 25% of its audience was under the age of 16