Serving up Standards: The dish on two new Advertising Codes

After going through three rounds of consultation, the Advertising Standards Authority (ASA) has announced that the following codes have been adopted and will replace the existing Children and Young People's Advertising Code and the food rules in the Advertising Standards Code:

• Children's Advertising Code; and
• Food and Beverage Advertising Code (Food Advertising Code).

The codes have a simmering focus on protecting children from various forms of advertising and will apply to new advertising from 1 August 2024 and all other advertising from 1 November 2024.

Background - how is advertising regulated in Aotearoa?

Advertising in New Zealand is regulated by the ASA, which is a self-regulatory body. The ASA Codes Committee-which consists of advertiser, agency, media and public representatives-is responsible for developing various advertising codes (in consultation with industry and public sectors) which set rules and expectations to ensure every advertisement is a responsible advertisement.

While codes are not laws per se, they set important expectations and industry standards for how businesses in New Zealand should operate when advertising their goods and/or services. ASA members consist of associations and incorporated entities which represent a large proportion of the media and advertising industries in Aotearoa. According to the ASA, the "function of the codes is to complement, not to replace, the laws of the land".

The two new codes form part of the bundle of advertising codes developed by the ASA Codes Committee.

What is covered by the existing codes?

The existing Children and Young People's Advertising Code has a wide scope which is intended to be split up by the introduction of the two new codes. The effect of the existing code is that it:

• applies to children under 14 years and young people between 14 and 18 years; and
• sets out expectations for advertisers to prioritise principles of social responsibility and truthful presentation when targeting children and young people - with guidelines relevant to food and beverage advertisements.

The Advertising Standards Code also broadly covers claims made about food and beverages, requiring them to be factual, not misleading, and able to be substantiated when made.

What has changed?

As with any recipe, if you try to add too many ingredients, the dish becomes unfocused, overwhelming and difficult to enjoy. We assume this is the exact analogy the ASA was thinking of when it decided to develop two separate codes.

The newly refined Children's Advertising Code updates the previous code by:

• Increasing the age of "children" to those under 16 years and removing all mentions of "young people".
• Providing more robust guidance about what it means to target children in advertising, which now includes accounting for the nature and intended purpose of the product, brand, service or message being advertised, the content of the advertisement itself as well as the expected average audience for the advertisement.
• Including more detailed guidance on privacy and now references the Privacy Act 2020.
• Providing further guidance on safety and an exception for advertising informing children about the dangers and risks of harmful behaviour.
• Including the 'fear and distress' rule from the Advertising Standards Code which provides that an advertisement must avoid causing undue fear or distress in children if that is not justified.
• Providing stricter disclosure standards for advertisements aimed at children in the event that a message is deeply immersed or integrated into editorial context - requiring advertisers to ensure the enhanced disclosure is "prominent, interruptive, and sufficient to identify the advertiser and the commercial intent of the advertisement."
• Providing stricter requirements for advertisers so as to ensure children, on the whole, understand certain aspects of advertisements, for example, when pricing uses real currency as well as being able to easily ascertain how to dismiss an advertisement that pops up.

The new Food Advertising Code collects and combines the aspects previously included across the different codes relating to food and beverage advertisements. As a standalone, the Food Advertising Code:

• Requires a high standard of social responsibility in relation to all food and beverage advertising, which must be approached through the lens that eating a healthy diet is essential for overall health and well-being and should be prioritised when making food and beverage advertisements.
• Prescribes the same age-range for children as the Children's Advertising Code and includes the same guidance on what constitutes targeting children in an advertisement.
• Places restrictions on the promotion of "Occasional Food and Beverage Products" which consist of products that do not align with the Nutrient Profile Scoring Criterion set out by Food Standards Australia New Zealand (FSANZ), as periodically published by FSANZ.
• Prohibits the targeting of Occasional Food or Beverage Advertisements at children. However, it does allow for Occasional Food or Beverage Sponsorship Advertisements, albeit with stringent conditions on their targeting of children. This is covered by rule 3(a), which states that advertisements directed at children must refrain from showcasing the products or their packaging, or depicting consumption. Instead, they must establish a clear sponsorship link between the brand and the sponsored entity, with the advertisement primarily focusing on the sponsored party.

What does this mean for you?

The new codes present more robust requirements for advertisers - particularly for advertisements that are targeted at children. Given the rules are intended to set industry expectations for advertisements of this nature, we recommend taking these changes seriously.

Next Steps

As mentioned above, the new codes will come into effect from 1 August 2024 for new advertisements and 1 November 2024 for all other advertisements. If you are unsure how these Codes will affect your business, we are here to help. Get in touch with Hayley Miller, Jenni Rutter, Gunes Haksever or Ashleigh Ooi. We can review your marketing material, advise you on your obligations under these codes, provide training for your staff, and more...

This article was written by Lavi Abitbol, a solicitor in our Technology, Media and Telecommunications team.

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