Mondelez ruling: Peter Rabbit promotion not in breach of HFSS ad restrictions

Should a website built for the purposes of redeeming a prize be deemed an ‘advertisement’ or simply a functional page? If that website is primarily accessible to those over 18, could it still be considered as being directed at children?

The background

A website for a Cadburys Peter Rabbit promotion was viewed in April 2018.  The website showed both an image of the licensed character Peter Rabbit, from the film “Peter Rabbit”, and text which read “Chance to WIN a family holiday – Plus 1000 Peter Rabbit (TM) Prizes”.  Further text below the image stated that Cadbury “were pairing up with a special bunny”, and this was accompanied by more images of characters from the movie “Peter Rabbit”.

Sustain, the Children’s Food Campaign, challenged whether the ad was:

• for HFSS products that were targeted to appeal to children
• directed, through the website, at children with licensed characters popular to children.

The response

Cadburys argued that the website, where those that had found winning coupons inside the promotional packs could redeem their prizes, was solely a practical and functional web page.  It should not be considered as an advertisement and therefore should not be subject to the CAP Code.  In the event that the website was to be considered as an ad, Cadburys stated that the website address was only advertised on the coupons inside of the winning products.  These products were contained in promotional Easter packs, which Cadburys claimed were mainly bought by adults.

Furthermore, Cadburys stated that the web page and the coupons specified that in order to access the prizes, you needed to be over 18 years old.  They also stated that they had safeguarded the website by ensuring that the web page would not work if a participant entered a date of birth which was under 18 years old.  Cadburys substantiated these claims by showing statistics of the website traffic sorted by age groups, the youngest of these being 18 to 24 years old.

Through these arguments, Cadburys contended that the website was not an ad and, if it was considered to be so, it was not directed to appeal to children.

The decision

The ASA firstly considered whether the website fell within the remit of the code.  As the web page gave details on the promotion and how to redeem prizes, and promotions in non-broadcast media are governed by the CAP Code, the website was deemed an ad and therefore subject to the Code.  Since there were photographs of the Cadburys products which were all HFSS, the ad was deemed to be an HFSS product ad.

HFSS ads must not be directed at children and, although the webpage included images of Peter Rabbit characters that would be appealing to children, the language used to describe the competition was not focused on children.  It was agreed therefore that the ad was not targeted towards under-16s.

Since no medium is appropriate for HFSS ads if more than 25% of those visiting the site are under 16-year olds, the ASA analysed the probable audience.  The only way of knowing about the competition was through the details found on coupons in promotional packs which were of interest to adults and children who found winning vouchers.  The ASA concluded that, since it was clearly stated on these tickets that the competition was only valid for over 18s, it was likely that less than 25% of users on the website would be children because adults would enter the competition on their behalf.  Therefore, it did not breach the Code.

HFSS product ads must also not include licensed characters popular with children if the ads are aimed at young children.  Peter Rabbit clearly falls within that category.  However, the ASA concluded that, since the wording of the promotion was directed towards adults with “WIN a family holiday,” and the details and logistics of how to enter were set out on the web page, the content was not aimed at young children and did not breach the Code.

Why is this important?

This decision shows that certain promotional materials, even if they contain appealing characters and prizes to children, may not be in breach of CAP Code restrictions on HFSS products if they are very clearly aimed at adults.

Any practical tips?

HFSS ads continue to attract considerable regulatory heat, especially those which include characters appealing to children.  If a website or promotion uses such characters but is intended for adults, then make it expressly clear (in words and promotional terms etc) that it really is meant for adults.  Couple this with records to evidence adult-level engagement, and you will increase your chances of slipping below CAP’s restrictions on HFSS advertising.