Advertising Code for Food Products 2019
I. GENERAL PROVISIONS
Field of application
This Code applies to all advertising for food products specifically intended for the Dutch market, regardless of the medium used, and therefore includes online advertising and social media (such as influencer marketing).
a. Food(s): any industrially prepared and often packaged food and drink products and drinks intended for consumer use.
b. Health- and food claims: claims defined in article 2 paragraph 5 and paragraph 4 respectively of Regulation (EU) No. 1924/2006, hereinafter referred to as the Claims Regulation.
c. Children: minors who have not yet reached the age of 13.
d. Portion size: size of a portion related to weight and/or volume.
e. Children’s Idol: persons, as well as comic characters and/or animated figures, well known by their role in specially targeted and/or specially developed children’s media, such as television programmes, films, online videos, blogs, comics, books and/or games. Comic characters and/or animated figures developed by the advertisers themselves do not fall within the definition of a children’s idol.
f. Point-of-Sale material: Advertising messages available at a Point-of-Sale.
Children’s idols within the meaning of this code include, among others, licensed media characters popular among children. These characters are derived from, for example, popular cartoons or games and have no historical relationship with the food concerned. This is in contrast to so-called ‘brand characters’ that have been developed by, or on behalf of, the advertiser and that do not have a separate identity outside the associated product or brand. This kind of ‘brand character’ does not fall under the definition of child idol outlined under ‘e’.
II. ADVERTISING MESSAGES
In an advertising message for food, statements referring to taste, portion size and a possible contribution of the commended food to a healthy eating pattern shall be correct and complete.
In addition to the provisions of this code, the present laws and rules concerning labelling, nutritional value indications, and nutrition and health claims apply to an advertising message for food products.
Par. 1. Health claims
a. Health claims are exclusively allowed if they:
· are stated as an authorised claim in the annex to EU Regulation 432/2012 including
subsequent amendments or
· as an authorised claim in Commission Regulations which confirm the claims allowed
under Article 13(5) and Article 14 of the Claims Regulations or
· fall under a transitional measure by reason of which the use is provisionally permitted, in accordance with the guidance document referenced in the explanatory note under b.
It is prohibited to use health claims rejected by the European Commission or which do not fall under a transitional measure.
All the authorised and rejected claims are stated in a Community register cited in Article 20 of the Claims Regulation. Said register is exclusively available in the English language and can be found at: https://ec.europa.eu/food/safety/labelling_nutrition/claims/register/public/
b. Instead of the phrasing by which the claim is officially described as authorised claim in the regulations cited in a. it is also allowed to use other phrasing in commercial communications provided it meets the following two (cumulative) conditions:
· the phrasing reflects the health relationship on which the authorised health claim is founded
· the phrasing is understandable to the consumer.
For the sake of the assessment of the question whether these two conditions have been met, the Stichting Bewoording Gezondheidsclaims (Dutch Foundation on Wording of Health Claims) developed a review basis consisting of a guideline document and an indicative list of phrasing examples. The document and the list of sample terms can be consulted (in Dutch only) through the digital version of this Code at https://www.reclamecode.nl/nrc/rvv2019/
c. Under the conditions of Article 10(3) of the Claims Regulation references to general, non-specific benefits of a nutrient or food for overall health or health-related well-being are allowed. The reference concerned must be accompanied in that case by a specific health claim which is authorised by a regulation as cited in a) of this paragraph.
d. It goes for health claims that all the relevant elements and data must be provided, including the conditions of use which show that the Claims Regulation is complied with. Furthermore the further labelling requirements as stated in Article 10(2) of the Claims Regulation and the other requirements of this regulation must be met.
Par. 2. Nutritional claims
As far as nutritional claims are concerned, the criteria on which the claim is based shall be met as listed in the Annex of the Regulation on Claims.
Commendation of a food product by referring to a certain quality which does not have a distinctive capacity within the relevant group of products is not allowed if the referral is intended to distinguish the food Product from other products in the same group in a misleading manner.
It is permitted to refer to a GENERAL feature, e.g. “Product X is naturally fat free”, as this refers to a common feature of all products in the category. The addition ‘naturally’ is explicitly for this purpose included in the Regulation of Claims.
If in an advertisement a food product is shown as part of a meal, the entire meal shown shall comply with the Guidelines for Good Nutrition.
The Guidelines for Good Nutrition can be found at: https://www.gezondheidsraad.nl/documenten/adviezen/2015/11/04/richtlijnen-goede-voeding-2015
Because the Good Food Guidelines concern a total diet and not just individual meals, a meal may be considered to be complete if it contains a protein component, a starch component and a portion of vegetables and/or fruit.
Advertisements shall neither show excessive consumption, nor explicitly encourage excessive consumption of any food product. Furthermore, such behaviour shall not be held up as an example and/or be justified. Usual price or volume actions are not considered as explicit encouragement or excessive consumption.
An advertisement for food with a lower energy value than the original product may not encourage higher consumption of that product than of the food product with the original, higher energy value.
SPECIFIC PROVISIONS FOR ADVERTISING AIMED AT CHILDREN
Advertising for food products intended for children of 12 years and younger is not permitted, unless it is:
a. advertising for food products created in cooperation with, or supported by the government and/or an approved authority in the field of nutrition, health and/or physical exercise;
b. Packaging and point-of-sale material.
c. Advertising aimed at children from 7 to 12 years old for foods that meet the nutritional criteria
‘An approved authority’ as referenced in para 1 under a. means on the one hand, national approved authorities such as the government itself (e.g. VWS, EZ, SZW), the Netherlands Nutrition Centre, the National Institute for Sports and Exercise, NOCNSF, recognized patient organizations such as the Dutch Heart Foundation, the Dutch Diabetes Association and/or the Dutch Obesity Association and professional associations in care and exercise, such as the Dutch Association for Dieticians and the Dutch Practitioners Association, and, on the other hand, international and European authorities, such as the World Health Organization and the European Commission.
The nutritional criteria referred to in paragraph 1 under c. are included in the table with corresponding portion size list on https://www.reclamecode.nl/wp-content/uploads/2018/05/Portiegroottelijst-FNLI-2016_aangepast.pdf (only Dutch text). At the request of the Dutch Advertising Code Authority, an advertiser will submit the full label of the product to which a complaint relates.
a. Children’s idols aimed at children up to and including the age of 6 may not be used in advertising. This prohibition also applies to packaging and point-of-sale material.
b. Child idols aimed at children from 7 to 12 years of age may only be used in advertising, and also on packaging and point of sale material, if the food meets the nutritional criteria. If the product does not meet the nutritional criteria, these children’s idols may not be used in advertising, nor on packaging and point of sale material.
c. The prohibitions mentioned under a and b do not apply in the situation where paragraph 1 sub a applies.
d. In advertising as referenced under b, a child idol will not actively promote a food and/or related premiums and services.
For the definition of ‘children’s idol’ see sub e. in the Definitions of this Code. In order to determine the age group at which a children’s idol is aimed, the specific circumstances of the case are taken into account. The burden of proof lies with the advertiser, who can thereby base himself on the age limit stated by the licenser or the program/film maker and/or other valid and appropriate evidence.
“Active promotion” as mentioned under d means, among others, that a children’s idol directly encourages children to buy the food.
Insofar as advertising for foods on the basis of the exceptions in paragraph 1 under a-c may be aimed at children up to and including 12 years old, the following restrictions apply:
TV AND/OR RADIO PROGRAMME
a. Advertising for a food product that is associated with a specific television and/or radio program intended for children, may not be shown in commercial breaks during or immediately following the broadcast of that program.
b. The impression should not be given that the consumption of the advertised food renders a child a higher status or greater popularity among peers than the consumption of another food product.
AIMED AT CHILDREN
Advertising for food products is in any case considered to be aimed at children:
a. If the advertising is expressed in media that, according to generally accepted market research, focuses specifically on children up to and including 12 years of age.
b. If the advertising is expressed in media that do not specifically target children up to and including 12 years of age, but the audience for which the advertisement is intended consists of at least 25% of children up to and including 12 years of age, according to generally accepted market research.
Unlike print or television, in the case of online media there are no generally accepted market figures available that can be used to establish that websites or parts thereof, or social media channels or other online platforms, are specifically aimed at children up to and including 12 years old, or that the public for which the advertisement is intended consists of 25% or more children up to and including 12 years. To be able to determine the user profile, a review ca be made of the following criteria (non-exhaustive):
- Use of language: is a tone or choice of words used specifically for children?
- Design and animations: are design, animation, cartoons, fantasy images and/or colouring pages specifically aimed at children used?
- Games and playful activities: are games, toys, craft tips offered specifically for children?
- Children’s idols: are popular children’s idols, such as licensed media characters used, and if so, at what age group are these children’s idols targeted?
SOME SPECIFIC FORMS OF ADVERTISING AT SCHOOLS
It is not allowed to advertise food in playgroups, day-care centers, after-school childcare centers and at schools for primary education. The only exception is an informational advertising campaign realized in cooperation with the government and/or other approved authority in the field of nutrition, health and/or physical exercise.
For clarification: sampling is considered to be advertising.
At schools for secondary education no promotional activities shall be held which are only intended to motivate the students to excessively consume the commended food product at that time.
The schools for secondary education only the regular packages of a Food product shall be commended and offered for sale, and not the maximum, king size etc. variants.
With respect to sponsoring the most recent version of the ‘Schools for primary and secondary education and sponsoring’ Covenant applies.
The Covenant can be found at https://www.rijksoverheid.nl/documenten/convenanten/2009/02/24/convenant-scholen-voor-primair-en-voortgezet-onderwijs-en-sponsoring
ENTRY INTO FORCE AND EVALUATION
This Code entered into force on 2 June 2005, was amended on 1 February 2010 and again on 1 January 2015* and on 1 February 2019*. For the current advertisements regarding Article 8, a transition period of a maximum of 17 months will apply and/or until existing media annual contracts have expired. The Code will be evaluated after 2 years and adjusted if necessary.
*The Dutch Consumers Association (de Consumentenbond) does not endorse the Special Advertising Code for Food products as entered into force on 1 January 2015 and 1 February 2019. The Dutch Consumers Association does not agree with the Code on the following components: the specification of the nutritional criteria and the (limited) exclusion of packaging and POS material and a too high threshold to determine whether an expression is aimed at children.
A Special Advertising Code, approved by the Board of the Advertising Code Foundation without being (fully) endorsed by the Column Consumer & Society of the Dutch Advertising Code Authority has the same validity as the other special advertising codes.