Costcutter has become the first convenience retail chain to fall foul of the UK's new restrictions on online advertising of less healthy food and drink products after the Advertising Standards Authority (ASA) ruled against an Easter promotion run with Cadbury.
The watchdog upheld a complaint over a campaign webpage promoting Costcutter's “Spin to Win” Easter competition, finding it breached rules introduced in January banning paid online advertising for identifiable high fat, salt and sugar (HFSS) products.
However, it dismissed a separate complaint against the accompanying paid Instagram advert, concluding it qualified for the brand advertising exemption.
The ruling marks the first time a convenience retailer has been found in breach of the regulations, which are designed to reduce children's exposure to advertising for less healthy foods. Earlier this year, Lidl and Iceland Foods became the first retailers to have adverts banned under the new regime, while more recently the ASA ruled against an Easter-themed Instagram campaign by Amazon Fresh and an Instagram advert for M&M's.
The complaint, brought by campaign group Bite Back, centred on Costcutter's Easter promotion created in partnership with Mondelez, owner of Cadbury.
The campaign comprised a paid Instagram advert inviting shoppers to “Spin to Win Cadbury Treats” and a linked landing page hosted on Bestway Retail's website featuring images of Cadbury Easter products, including Creme Eggs, Mini Eggs and Biscoff Filled Eggs, alongside details of the competition.
Costcutter and Mondelez argued the Instagram advert promoted only the Cadbury brand rather than specific products and was therefore exempt from the restrictions. They also maintained the landing page was not a paid advertisement because Mondelez had not paid specifically for that element of the campaign.
The ASA agreed that the Instagram advert, viewed on its own, did not depict a specific HFSS product despite its Easter imagery and references to “Cadbury treats”. It concluded the advert promoted the Cadbury Easter range as a brand and therefore benefited from the brand advertising exemption.
However, the regulator reached a different conclusion on the landing page.
It found that the webpage formed part of the paid promotional package purchased by Mondelez and prominently displayed pack shots of identifiable Cadbury Easter products that are classified as HFSS foods. As a result, the page constituted a paid online advert for identifiable less healthy products and breached CAP Code rule 15.19.
“We noted Mondelez said they had had no input into, or control over, the content of the landing page. However, the test in law related only to whether a “person” (which included businesses) had made payment for an ad to be placed on the internet; the extent to which they had control over the ad’s content was not relevant. We therefore concluded that ad (b) was an ad, and that Mondelez had paid for it to be placed on the internet,” the ruling said.
The ASA ordered that the webpage must not appear again in its current form and instructed Costcutter and Mondelez to ensure future paid online advertising does not promote identifiable less healthy products.
The ruling provides further clarification for retailers and FMCG suppliers navigating the HFSS advertising restrictions, highlighting the distinction between brand advertising, which may be permitted, and campaigns that feature specific less healthy products.
It also underlines that linked webpages and promotional microsites can fall within the scope of the rules where they form part of a paid digital advertising campaign, even if advertisers argue they were not separately paid for.