Three emails from Burger King:
a. The first email, dated 12 August 2023, included a large photo of the “Doritos King Box”. Text underneath the image stated, “Doritos King Box […] Don’t worry, summer. We’ll take it from here. You thought summer was over? Well, think again, hot stuff – we’ve got a scorcher of a deal for you! Add Doritos Chilli Heatwave Chicken Fries (5 pc) to your Classic Cheese Melt or BBQ Double Melt King Box – all for just £5.99!”
b. The second email, dated 18 August 2023, included a large photo of a “Spicy Mayo Whopper” burger and a “Spicy Mayo Chicken Royale” burger, surrounded by stylised orange flames and large text that stated, “SPICY MAYO”. Underneath the image, text stated, “Your favourites, all fired up […] Order a Spicy Mayo Whopper (Single) or Spicy Mayo Chicken Royale and get another one completely free – for this weekend ONLY!”
c. The third email, dated 20 August 2023, included the same as ad (b). Text underneath the image stated, “Your favourites, all fired up for one weekend only […] Grab yourself a Spicy Mayo Whopper (Single) or Spicy Mayo Chicken Royale plus one more for free.”
Food Active challenged whether the ads were for products that were high in fat, salt or sugar (HFSS product ads) that were directed at children through the selection of media or context in which they appeared.
BKUK Group Ltd t/a Burger King said they were careful to take all reasonable steps to avoid targeting their ads at under 16-year-olds. Their terms of service, which were available on their website, app and related channels, stated that the “YourBurgerKing” service was designed for use by persons who were at least 16 years old. The terms also stated that people under the age of 16 who signed up for the service confirmed, by doing so, that they had received permission from their parent or guardian before using the service. Burger King said they did not prevent people who registered their age as being under 16 from signing up to the service because of that confirmation requirement. Furthermore, the age field on the sign-up form was optional because they believed it was not mandatory for a consumer to share their date of birth during the sign-up process.
The CAP Code required that HFSS product ads must not be directed at people under the age of 16 through the selection of media or the context in which they appeared. The ads, three emails sent to registered users of the “YourBurgerKing” service, featured promotions enabling consumers to add items to a Burger King meal deal at a discounted rate, or to get another item as part of a ‘buy-one-get-one-free’ offer. The ASA understood that the meals seen in the emails were HFSS products and, as such, considered that the promotional messages were ads for HFSS products for the purposes of the Code.
CAP Guidance stated that if data was used to create an audience, for example a mailing list for direct or email marketing, marketers must ensure they had taken all reasonable steps to exclude under-16s from the list or targeting criteria. Anyone with a date of birth that meant they were under-16 should be removed.
The terms of service stated that “YourBurgerKing" was intended for use by people who were at least 16 years old, or that users who were under the age of 16 obtained permission from their parent or guardian. However, that information was not presented on the sign-up page, and registration could be completed without needing to have read the terms of service. In any case, we considered that if data was used to create an audience that it should, where necessary, be used to exclude individuals on the basis of their age, and it was not sufficient only to state that the service should not be accessed by under-16s.
While we noted that users could sign up for a “YourBurgerKing” account without providing a date of birth, we considered that it would still have been possible to exclude users who had provided a date of birth which showed that they were under 16 from receiving promotional emails and notifications for HFSS foods. Regardless of whether a user had provided a date of birth, because users under the age of 16 were freely able to sign up to Burger King’s service, we also considered that Burger King should have taken steps to ensure that registered users under the age of 16 did not receive promotional materials for HFSS foods. We also understood that if an organisation relied on consent as their lawful basis for processing a child’s personal data, in the UK, only children aged 13 or over were able to provide their own consent. We therefore considered that Burger King should have taken further steps, beyond self-declaration at the point of sign-up, to ensure that children under the age of 16 were not at risk of receiving promotional materials for HFSS foods.
The ads, which were for HFSS products, had been sent to an individual with a registered age of a 15-year-old. For that reason, we considered Burger King had not taken reasonable steps to exclude under-16s from the audience, and that the ads had been directed at children through the selection of media in which they appeared. We therefore concluded that they breached the Code.
The ads breached CAP Code (Edition 12) rule 15.18 (HFSS Product Ad Placement).
The ads must not appear again in the form complained of. We told BKUK Group Ltd to ensure that HFSS product ads were not directed at children through the selection of media or the context in which they appeared.