Summary of Council decision:
Two issues were investigated, both of which were Not upheld.
A Video on Demand (VOD) ad for McDonald’s Happy Meals, seen on 21 January 2018 between episodes of Peppa Pig on the VOD service Ketchup TV, began with two animated red Happy Meal boxes in a jungle. They came across a pineapple and one of them grabbed it and held it aloft excitedly. A voice-over said, “Pokémon is now at McDonald’s” as a bright yellow Happy Meal-shaped box designed to look like the Pokémon character Pikachu swung down from a tree and seized the pineapple. The voice-over continued, “Who was that, Happy? No one can resist juicy pineapple. After him!” as the red Happy Meal boxes chased the Pikachu box through the jungle. The Pikachu box released an electric charge and all three boxes fell from a tree, with the pineapple landing in the hands of one of the red boxes. The Pikachu box released another electric charge and the pineapple exploded into bite-sized pieces. The voice-over said, “Luckily there’s enough for everyone. You too can enjoy some delicious pineapple, now at McDonald’s. Some fun, some food: it’s all inside this Happy Meal”, accompanied by a shot of a blue Pokémon-branded Happy Meal box, a toy Pikachu character and trading card, a bottle of water, a portion of chicken nuggets, and a bag of pineapple.
The complainant challenged whether the ad was for a product that was high in fat, salt or sugar (HFSS product ad) that was targeted:
1. at children through the media or context in which it appeared; and
2. through its content directly at pre-school or primary school children and included licensed characters popular with children.
1. & 2. McDonald’s Restaurants Ltd said that the items of food shown in the ad – Chicken McNuggets, a Pineapple Fruit Bag and mineral water – were not classified as HFSS. They felt that because the ad focused on non-HFSS products throughout, viewers would understand that it was a product ad for those foods, sold as a Happy Meal, rather than seeing it as a brand ad.
They said the Happy Meal brand was in any case a non-HFSS brand. Happy Meals comprised a combination of three food items for a set price, made up of one main, one side and one cold drink. At the time the complainant saw the ad, the full Happy Meal menu featured 22 food and drink items, comprising five mains, three sides, and 14 drinks. Of the 22 items, 16 (or 72%) were non-HFSS: four mains, all three sides and nine drinks. The six items that were HFSS were: one main (Cheeseburger) and five cold drinks (small Coca-Cola and four different flavours of milkshake).
McDonald’s highlighted that CAP guidance on “Identifying brand advertising that has the effect of promoting an HFSS product” stated that an ad was unlikely to be regarded as an ad for an HFSS product where the products in the range referred to were mainly non-HFSS. McDonald’s therefore considered that an ad for a range with 16 non-HFSS products out of a total of 22 was unlikely to be regarded as an ad for an HFSS product, and that the Happy Meal brand would be classified as a non-HFSS brand according to that guidance.
McDonald’s explained that they had worked generally to reduce salt, saturated fat and calories in their food items, and that permanent additions to the Happy Meal menu since 2014 had all been non-HFSS. As a result their most popular Happy Meal in 2017 (Chicken McNuggets, Fries and a Fruit Shoot) contained 21% less salt, 10% less saturated fat, 3% fewer calories and 20% less sugar than the same meal as sold in 2006.
They said the Happy Meal brand was synonymous with a much broader offering than just food and drink, including an education offering, and they were committed to being responsible in their advertising to children. All ads that were directed at children incorporated either a ‘Fun Nutrition’ or a ‘Children’s wellbeing’ message, and they only advertised Happy Meals to children which fulfilled specific nutritional criteria around calories, salt, saturated fat and sugars, and which included a portion of fruit or vegetables. They also actively promoted the non-HFSS product options in their restaurants.
McDonald’s acknowledged the ad featured a licensed Pokemon character represented by the Pikachu-themed meal box, which had been shown on a VOD channel for children. However, they considered that the ad was not for an HFSS product and it therefore had not breached the Code rules relating to HFSS product ads.
They said that none of the 22 products on the Happy Meal menu, including the HFSS products, were synonymous with the Happy Meal brand name, and that the characters in the ad – the McDonald’s equity brand character “Happy” and the licensed Pokemon character represented by the Pikachu-themed meal box – were not synonymous with any HFSS items, brands or activities.
Notwithstanding that ads for non-HFSS products were not subject to any restrictions regarding the age of the audience, they said they had a policy not to schedule Happy Meal VOD ads between programmes targeted at pre-school children. They acknowledged that the complainant had seen the ad during such programming, and said that error was not the fault of either McDonald’s or its agencies. They had followed that up to ensure that all channels which showed Happy Meal ads did not repeat the error.
Clearcast said that McDonald’s had provided confirmation that the products were non-HFSS and so they had approved the ad on that basis.
Video On Demand 365 Ltd, who ran the Ketchup TV VOD service, said Clearcast had cleared the TV version of the ad with no restrictions other than a two-hour separation from the programme Pokemon, having determined that it was not an HFSS product ad. They also said that McDonald’s agency had given them a list of the programmes on Ketchup TV in which they were to place the ad, which were selected based on those which had a slightly older child audience and which constituted a lower percentage of the overall viewing total. That did not include Peppa Pig, but unfortunately an internal error had meant the ad was placed next to that programme. They had identified the error and taken action to ensure it did not happen again.
1. & 2. Not upheld
The CAP Code required that HFSS product ads must not be directed at children through the selection of media or the context in which they appeared. It also required that HFSS product ads that were targeted through their content directly at pre-school or primary school children must not include licensed characters popular with children. CAP Advertising Guidance titled “Identifying brand advertising that has the effect of promoting an HFSS product” laid out that the promotion of HFSS products might occur both directly (where an ad featured an HFSS product) and indirectly through the use of branding that was synonymous with a specific HFSS product, that could be through product-related branding or company or corporate branding more broadly.
We first considered whether the ad featured an HFSS product. The ad told the story of the Happy Meal box characters and the Pikachu-themed Happy Meal box character fighting over a delicious pineapple, and concluded with an image of a blue Pokémon-branded Happy Meal box next to a bottle of water, a portion of chicken nuggets, and a bag of pineapple. All three food and drink items were non-HFSS food products and the ad therefore did not feature any HFSS products.
We then went on to consider if the ad had the effect of promoting an HFSS product through the use of branding. We considered that children who saw the ad would understand it to be both about Happy Meals generally, as well as more specifically for the Pokémon-themed Happy Meals available at the time, and for the pineapple available in them. We therefore considered whether the ad had the effect of promoting an HFSS product through the use of references to the Happy Meal.
The Happy Meal was a product which allowed consumers to purchase a combination of three food and drink items: a main, side, and drink. We considered the ad would be understood as advertising the Happy Meal generally as a product combination as well as the specific product combination (and particularly the pineapple sticks as part of that combination) that was shown in the ad. We therefore considered whether the Happy Meal, as a product combination, was a non-HFSS or HFSS product.
We noted that 80% of mains, 100% of sides, and 64% of drink options available in the Happy Meal were non-HFSS products. We therefore considered that the Happy Meal was, overall, a non-HFSS product combination. We also noted that the majority of each of the categories of mains, sides and drinks sold in Happy Meals were non-HFSS items, that over half of Happy Meals sold did not include any HFSS products, and that over three-quarters of all items purchased as part of a Happy Meal in 2017 were non-HFSS. Because Happy Meals were overall a non-HFSS product combination, we concluded that the ad was not an HFSS product ad for the purposes of the Code and that the rules relating to HFSS product ads therefore did not apply to it. We concluded that the ad was therefore not in breach of the Code.
We investigated the ad under CAP Code (Edition 12) rules
Licensed characters and celebrities popular with children must be used with a due sense of responsibility. HFSS product advertisements that are targeted directly at pre-school or primary school children through their content must not include licensed characters or celebrities popular with children. For the avoidance of doubt, that prohibition applies to food or drink advertisements only.
The prohibition does not apply to advertiser-created equity brand characters (puppets, persons or characters), which may be used by advertisers to sell the products they were designed to sell.
Licensed characters and celebrities popular with children may present factual and relevant generic statements about nutrition, safety, education or similar.
and 15.18 15.18 HFSS product advertisements must not be directed at people under 16 through the selection of media or the context in which they appear. No medium should be used to advertise HFSS products, if more than 25% of its audience is under 16 years of age. (HFSS product ad placement), but did not find it in breach.
No further action necessary.