Advertising: the legal rights at issue with advertising and marketing of products and services

Thanks to Grub Club for a great evening on 26 September to celebrate their 2nd birthday!  As part of the event I gave a short talk highlighting some of the advertising ‘watch outs’ that regularly come up in the food and drink sector from a legal perspective.

Increasingly when it comes to selling food and drink, advertisers are trading off the associated health and nutritional benefits but it’s important not to exploit people’s vulnerabilities in this regard.  At a basic level, only health and nutrition claims which are authorised by EU regulation can be used in marketing communications and they must also meet the conditions of use associated with the claims in question. For example, ‘no added sugar’ is a permitted nutrition claim but one of the conditions in making the claim is that the product must not contain any other food used for sweetening, such as agave nectar and the like – ref: Taywell Ice Creams ASA ruling, 10 August 2016.

The advertising of food to children is another area of public concern and the rules are very prescriptive to ensure that food is advertised responsibly and that marketers take care not to exploit children’s credulity.  This was highlighted in an advergame that encouraged the purchase of boxes of Weetabix to fuel a Weetakid character and was considered by the ASA to make children feel inferior if they didn’t eat, buy or encourage their parents to buy the product – ref: Weetabix Ltd ruling, 13 February 2013.

Comparative advertising can be a great way to help your company stand out in the marketplace but it’s also an area that tends to generate complaints, particularly from the competitors you might be knocking.  The key point to remember, especially with comparative nutrition claims, is that you must compare foods of the same category, i.e. like for like, as one trader discovered to its detriment when comparing a gin and tonic with a banana – ref: The Gin Lab ASA ruling, 15 June 2016.   And, with general taste claims, you should always hold conclusive taste test evidence prior to making a “tastes better” claim.  It can be done properly and very effectively (ref: Costa Ltd ruling, 16 June 2010), but requires a forensic review of the underlying data beforehand.

Finally, given how much marketing spend is now dedicated to online media campaigns it seemed fitting to finish on one of the key issues in this area, being the clear identification of advertisements as such.  One of the more high profile examples is the Mondelez Oreo Lick Race Challenge campaign.  Mondelez signed a number of well-known YouTubers to promote its product in videos where they took part in a race to see who can remove the cream from an Oreo cookie the fastest.  As the videos were made in the style of the YouTubers’ regular content posts it wasn’t immediately clear that Mondelez had paid for and had editorial control over the videos.  The lines are necessarily blurred when it comes to native advertising.  Therefore, to keep on the right side of the line, you do need to use clear labelling (#ad and the like) to avoid any misconceptions.

It can be difficult to navigate your way through, so if in doubt, please do ask.  Ultimately, it’s your responsibility to your consumers to know the rules, and more importantly to uphold your reputation as a decent and honest brand.

Nellie Jackson

Senior Associate | Intellectual Property | Birketts LLP | www.birketts.co.uk

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