1.1 Ofcom is the independent regulator of television, radio, telecommunications and wireless communications services in the UK. Part of our role is to set standards for television advertising. All television broadcasters must comply with these standards in relation to any advertising they transmit. In late 2004 we transferred the responsibility for the Television Advertising Standards Code to the Advertising Standards Authority (ASA), including the functions of complaints handling and code policy development. However, under this co-regulatory scheme Ofcom still retains ultimate responsibility for all television advertising standards as the backstop regulator under the terms of the Communications Act 2003 (‘the Act’). In particular, Ofcom retains direct responsibility for advertising scheduling policy.
1.2 The relevant objectives to be secured by these standards include protecting under 18’s, and preventing the inclusion of harmful advertising and unsuitable sponsorship. Ofcom also has a number of other duties which it must take into account including to further the interests of citizens and consumers, to maintain a sufficient plurality of providers of different television services and to secure the availability of a wide range of television services of high quality and calculated to appeal to a variety of tastes and interests. In performing these duties Ofcom must have regard, amongst other things, to the vulnerability of children and to the degree of harm and offence likely to be caused by the inclusion of any sort of material, and the likely size and composition of the audience. In imposing regulatory measures Ofcom has to act in a proportionate and targeted manner.
1.3 As well as setting standards to secure these objectives, the Act permits Ofcom to set standards which prohibit certain advertisements and forms and methods of advertising or sponsorship.
1.4 A growing body of research has generated concerns in government and society about rising childhood obesity levels and ill-health due to dietary imbalance, specifically the over-consumption of high fat, salt and sugar (HFSS) foods and the under-consumption of fresh foods, fruit and vegetables. Both the Department of Health (DH) and the Food Standards Agency (FSA) have identified television advertising as an area where action should be considered to restrict the promotion of HFSS foods to children.
1.5 In December 2003, the Secretary of State for Culture, Media and Sport, Tessa Jowell MP, asked Ofcom to consider proposals for strengthening the rules on television advertising of food aimed at children.
1.6 In response, in early 2004, Ofcom conducted research into the role that television advertising plays in influencing children’s consumption of foods that are HFSS. In publishing its research report in July 2004, Ofcom concluded that advertising had a modest, direct effect on children’s food choices and a larger but unquantifiable indirect effect on children’s food preferences, consumption and behaviour. Ofcom therefore concluded that there was a case for proportionate and targeted action in terms of rules for broadcast advertising to address the issue of childhood health and obesity. However, Ofcom also noted that one of the conclusions from the independent research was that multiple factors account for childhood obesity. Television viewing/advertising is one among many influences on children’s food choices. These other factors include social, environmental and cultural factors, all of which interact in complex ways not yet well understood. In these circumstances Ofcom considered that a total ban on food advertising would be neither proportionate nor, in isolation, effective.
1.7 In November 2004, DH published a White Paper reiterating the Government’s view that there was ‘a strong case for action to restrict further the advertising and promotion to children of those foods and drinks that are high in fat, salt and sugar’ in both the broadcasting and non-broadcasting arenas. At the same time the FSA published a consultation on a scheme which would identify HFSS food and drink products by means of nutrient profiling. This model was intended to help Ofcom reach decisions on the restriction of television advertising for less healthy foods. In December 2005, the FSA completed their work on a nutrient profiling scheme and delivered it to Ofcom.
1.8 In March 2006 Ofcom proceeded to consult on a range of different options for new restrictions on television advertising to children. On 9 May 2006 Ofcom announced that it would be publishing an update to its Impact Assessment intended to make it more straightforward to replicate the analysis undertaken by Ofcom, in particular by using the most up to date information for calendar year 2005. In order to provide consultees with an opportunity to consider the revised data and take it into account in their responses to the consultation, Ofcom announced that it would be extending the consultation period until 30 June 2006. This update to the consultation was published on 8 June 2006.
1.9 Following that consultation, Ofcom published a Statement and Further Consultation on 17 November 2006 (‘the November Statement’). This present Statement should be read in the light of the November Statement and in conjunction with it. In the November Statement, Ofcom said that it had concluded that, in the context of its statutory duties, the aims of further regulation in relation to television advertising should be to balance the regulatory objectives set out below. In the light of the consultation responses and after considering all the available evidence, it had extended the scope of the first regulatory objective to include all children under the age of 16, instead of children under the age of 10. Ofcom decided that the revised regulatory objectives were to:
1.10 The November Statement identified Package 1 as its preferred option, but sought views on whether a modified version of this package (Modified Package 1) would better fulfil Ofcom’s regulatory objectives. Modified Package 1 was set out in detail in the November Statement and further in section 4 of this Statement.
1.11 Ofcom received more than 50 representations from groups and individuals on its consultation on Modified Package 1: consumer and health groups (17), advertisers and food manufacturers (16), broadcasters and related bodies (12) and individuals (8).
1.12 After a detailed examination of all consultation responses and the available evidence, Ofcom has decided for the reasons set out in this document that Modified Package 1 should be adopted. Accordingly, the following package of measures to restrict the scheduling of television advertising of food and drink products to children will be applied:
1.13 Ofcom has also decided that, alongside these scheduling restrictions, revised content rules will apply to all food and drink advertising to children irrespective of when it is scheduled. The full content rules are set out in Annex 4 of this Statement. Key elements of the content rules include a prohibition on the use of licensed characters, celebrities, promotional offers and health claims in advertisements for HFSS products targeted at pre-school or primary school children.
1.14 The revised content rules, set out in Annex 4, will come into force for new campaigns with effect from the date of this Statement. Any campaigns that are already on air or in planning must comply with the new rules from 1 July 2007.
1.15 The scheduling restrictions, set out in Annex 3, will come into force in two stages as follows for all channels except children’s channels:
1.16 Children’s channels will be allowed a graduated phase-in period, with full implementation required from 1 January 2009 (see further section 5).
1.17 In accordance with the co-regulation arrangements put in place by Ofcom and its co-regulatory partners, responsibility for interpreting the rules rests with the Broadcast Committee on Advertising Practice (BCAP), while the ASA is responsible for securing compliance. All the new rules, both for scheduling and for content, will form part of and be included in the BCAP Television Advertising Standards Code.
1.18 The scheduling restrictions and revised content rules will apply to all channels transmitted by UK broadcasters whether aimed at UK audiences or outside the UK.
1.19 This document is structured as follows: