Food & Beverages Advertising Code

CODES

Food and Beverages Advertising Code

Effective from 1 November 2021

Objectives

This Code has been adopted by the AANA as part of advertising and marketing self-regulation. The object of this Code is to ensure that advertisers and marketers maintain a high sense of social responsibility in advertising and marketing food and beverage products in Australia in a manner that is legal, honest, truthful and reflects health and safety standards.

This Code is accompanied by a Practice Note which has been developed by the AANA. The Practice Note provides guidance to advertisers and complainants, and must be applied by the Ad Standards Community Panel in making its determinations. In the event of any ambiguity the provisions of the Code prevail.

Section 1

Definitions

In this Code, unless the context otherwise requires:

Advertising means:

any advertising, marketing communication or material which is published or broadcast using any Medium or any activity which is undertaken by, or on behalf of an advertiser or marketer,
- over which the advertiser or marketer has a reasonable degree of control, and
- that draws the attention of the public in a manner calculated to promote or oppose directly or
  indirectly a product, service, person, organisation or line of conduct,
but does not include:
- labels or packaging for products
- corporate reports including corporate public affairs messages in press releases and other media statements, annual reports, statements on matters of public policy
- in the case of broadcast media, any material which promotes a program or programs to be broadcast on that same channel, station or network.

Average consumer means a regular adult shopper.

Children means persons under the age of 15 and Child means a person under the age of 15.

Food or Beverage Products means any food or beverage products other than alcoholic beverages as defined in and subject to regulation by the Alcohol Beverages Advertising Code.

Health Claim has the same meaning as defined in the Australian Food Standards Code.

Medium means any medium whatsoever including without limitation cinema, internet, outdoor media, print, radio, telecommunications, television or other direct-to-consumer media including new and emerging technologies.

Nutrition Content Claim has the same meaning as defined in the Australian Food Standards Code.

Occasional Food or Beverage Products means food or beverages products which do not meet the Food Standards Australia Nutrient Profile Scoring Criterion as published from time to time by Food Standards Australia New Zealand.

Sponsorship means any agreement or part of an agreement involving payment or other consideration in lieu of payment by an advertiser to support a sporting or cultural property, event or activity, in return for which the sponsored party agrees to be associated with or promote the advertiser’s product or service.
Sponsorship also includes naming rights of events or teams and the inclusion of a brand name and/or logo at an event venue or on uniforms of participants (excluding branded merchandise).

Target Children is determined by the context of the advertisement and the following three criteria:

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

Interpretation

Target Children

All three criteria will be considered by the Community Panel in determining whether or not advertising targets Children. The weighting given by the Community Panel to each of the three criteria will be determined on a case-by-case basis. In the event of a complaint being considered by the Community Panel, the advertiser should be in a position to provide details in terms of the nature and intended purpose of the product, the presentation of the advertisement content and the expected average audience at the time or place the advertisement appears.

In relation to the third criteria, 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. In relation to outdoor advertising, if across a campaign the data shows a predicted audience with less than 25% Children, and there is a Children’s event or concert that is incidental to the ad placement, the audience of that incidental Children’s concert or event will not be captured.
C&P programmes.
Programs, artists, playlists, video, movies, magazines or other content with significant appeal to Children (e.g. featuring personalities or characters popular with Children).
Compliance with the Outdoor Media Association Placement Policy and Health & Wellbeing Policy which regulate the placement of advertising at primary and secondary schools which are locations where Children regularly and predictably gather.

Where accurate program audience data is not available, the 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 (in line with the above provision).

Section 2

Advertising for Food or Beverage Products

Advertising for Food or Beverage Products must not be misleading or deceptive or likely to mislead or deceive.

SECTION 2.1 Practice Note

In determining whether advertising for food or beverage products is misleading or deceptive or likely to mislead or deceive, the Community Panel will consider the likely audience for the advertising, including whether the advertisement is directed at the public at large or a more targeted audience. The Community Panel will consider whether or not an Average Consumer within the target audience would have been misled or deceived or likely to be misled or deceived by the advertisement.
Advertising for Food or Beverage Products must not undermine the importance of healthy or active lifestyles nor the promotion of healthy balanced diets or encourage what would reasonably be considered to be excess consumption through the representation of product/s or portion sizes disproportionate to the setting/s portrayed or by means otherwise regarded as contrary to the Australian Dietary Guidelines.
SECTION 2.2 Practice Note
This section contains two separate obligations. Failure to meet either one will be considered a breach of the Code.The Community Panel will not apply a legal test, but consider material subject to complaint as follows:
- Undermining the importance of healthy or active lifestyles or healthy balanced diets need not be explicit, and the Community Panel will consider the overall message that is likely to be understood by the Average Consumer.
- In testing whether an advertising or marketing communication encourages excess consumption through representation of products or portion sizes disproportionate to the setting portrayed, or by any other means contrary to the Australian Dietary Guidelines, the Community Panel will consider whether members of the community in the target audience would most likely take a message encouraging excess consumption. The Community Panel will also consider the age of the person shown in association with the product, recognising for example, that a teenage male may often consume more than an older male or younger child and this may not be a representation that encourages excess consumption in the situation portrayed.
Advertising for Food or Beverage Products that include what an Average Consumer might interpret as a Health Claim or Nutrition Content Claim must be supportable by appropriate scientific evidence meeting the requirements of the Australian Food Standards Code.

SECTION 2.3 Practice Note

This provision is intended to be applied by the Community Panel when considering whether an Average Consumer might consider statements made in an advertising or marketing communication as a Health Claim or Nutrition Content Claim.In testing whether this provision is properly applies, the Community Panel will apply its view of what an Average Consumer within the target market, might reasonably understand from a communication.
Having considered that statements made within an advertisement might reasonably be understood by an Average Consumer as a Health Claim or Nutrition Content Claim, the Community Panel will rely on substantiation provided by the advertiser and/ or appropriate expert or professional advice as to whether the claims can be properly supported by scientific evidence meeting the requirements of the Australian Food Standards Code.
Advertising for Food or Beverage Products including claims relating to material characteristics such as taste, size,
content, nutrition and health benefits, must be specific to the promoted product/s.

SECTION 2.4 Practice Note

In testing whether any claim is included within advertising, the Community Panel will consider whether an Average Consumer, acting reasonably, would consider a statement to constitute a claim (i.e. an assertion or contention about the component).Once a claim relating to a material characteristic of a promoted product is found, the Community Panel will need to determine whether such a claim can be met by the product alone, or only in combination with other products.The Community Panel will also consider whether the claim is accurate in its representations about the product and will usually do so on the basis of information provided on the packaging or otherwise provided by the advertiser.Visual representations of a ‘suggested serving’ will not, on its own, represent grounds for finding an advertisement or marketing communication in breach of section 2.4 of the Code. Any taste or nutrition claims relating to the product as consumed with an additional ingredient (e.g. cereal consumed with milk) must be clearly distinguished as being a claim for the product as consumed with such additional ingredient/s.
Advertisers are able to present a product in its best possible light, so long as that representation would be in line with what an Average Consumer would expect from such advertising, and would be unlikely to be considered to be making an explicit claim about the product/s.
Advertising for Food or Beverage Products not intended or suitable as substitutes for meals must not portray them as such.

SECTION 2.5 Practice Note

In its determination of whether any advertising or marketing communication portrays a product as suitable as a substitute for a meal when it is not intended or suitable for such use, the Community Panel will consider whether an Average Consumer, acting reasonably, would consider that the communication presents the product as suitable as a meal replacement. In determining whether such meal is intended or suitable for use as a meal replacement the Community Panel will apply its view of what an Average Consumer might think.

Section 3

Advertising & Children

Advertising (including sponsorship advertising) of Occasional Food or Beverage Products must not target Children.

SECTION 3.1 Practice Note

Advertisers must be able to demonstrate that they have evaluated or that care has been taken to evaluate the expected average audience composition before the placement of Occasional Food or Beverage advertisements to ensure they are not targeted at children.Where a meal deal is being advertised, each item in that meal deal must meet the Food Standards Australia Nutrient Profile Scoring Criterion, otherwise the advertisement will be considered to be for Occasional Food and Beverage Products.
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.
SECTION 3.2 Practice Note
These restrictions do not apply to sponsorship advertisements for food and beverage products that are not Occasional Food or Beverage Products.Companies or brands that sell Occasional Food or Beverage Products can sponsor teams / events / individuals and activities however:
- A clear sponsorship association should be made in sponsorship advertising (e.g. proud sponsor of x).
- In circumstances where a sponsorship or billboard shows anything more than the logo, company or brand name, the focus of the sponsorship advertisement should be on the activity, the team or the sponsored individual.
- Where the Occasional Food or Beverage Product is featured in sponsorship advertisement, the ad must not target children.
Advertising of Food or Beverage Products featuring a promotional offer of interest to Children must not create a sense of urgency or encourage the purchase or consumption of an excessive quantity.

SECTION 3.3 Practice Note

Advertising for collection-based promotions must not create a sense of urgency or seem to urge Children or their parents to buy excessive quantities of food.For the avoidance of doubt, promotional offers for Occasional Food or Beverage Products must not target children.
Advertisers must not give to Children as awards or prizes Occasional Food or Beverage Products or vouchers that can be used for Occasional Food or Beverage Products.

SECTION 3.4 Practice Note

A voucher for a specific dollar amount which can be used for Occasional Food and Beverage Products will be captured by this provision.

COMPLAINTS UNDER THE AANA SELF-REGULATORY SYSTEM

Complaints about the content of an advertisement or marketing communication can be made under this Code and the other AANA Codes to the Ad Standards.

Once the Ad Standards has received your complaint, it then assesses the complaint to determine whether it is eligible for consideration by the Ad Standards Community Panel. The Community Panel is the body established to consider complaints. If accepted the advertiser/marketer is notified and a response is requested. The complaint is then considered by the Community Panel and the advertiser and complainant are advised of the determination. A case report is then published. The original complainant or advertiser/marketer can also ask for a review of the determination.

You can make a complaint by: