An appeal against an Advertising Regulatory Board decision relating to Fair Cape Dairies’ full cream, sweetened chocolate milk depicting Barbie on the label has been dismissed.
Consumer Petronell Kruger argued that the product packaging was designed to appeal to young children, and that the product was an unhealthy sugary drink.
Her original complaint was dismissed, with the ARB directorate finding that the chocolate milk advert did not contravene the advertising code relating to food and beverage advertising. And once again, the regulator has ruled against her objection to the marketing of sugar-loaded products to children.
Kruger, however, appealed the decision, arguing that childhood obesity was a challenge in South Africa, and the relationship between this and the presence of more than average amounts of sugar in food products targeted specifically at children should not be allowed.
The product at the centre of the conflict is packaged in a plastic bottle with a large image of Barbie on the label. It is marked as ‘full cream chocolate flavoured milk’, and that it is ‘sweetened’ and ‘sterilised’.
Kruger argued that the product “is clearly an unhealthy sugary drink” that was designed to appeal to young children by using the Barbie image.
The food and beverage code provides that “food and beverage product advertising should not directly appeal to children of 12 years old and under to persuade their parents or others to buy advertised products for them; or suggest any negative consequences of not purchasing the product”.
Fair Cape denied that the product is unhealthy or that its advertising has contravened the code, stating that their product was a nutritious whole milk dairy drink. It said the packaging made no claim about the benefits of the product. It argued further that some of sugar in the product was intrinsic, in the form of lactose.
Fair Cape argued that Kruger had misinterpreted the requirements of the code which, if properly construed, does not prohibit the use of characters on product packaging.
Kruger was invited to address the ARB’s appeal panel, headed by Nasreen Rajab-Budlender SC and comprising members Alison Deeb, Sharon Keith and Lesiba Sethoga.
Kruger impressed on the panel that the single 300ml serving of chocolate milk contained 36.6g of sugar, which was far more than the total recommended sugar intake per day for children. Fair Cape did not dispute this.
Kruger said she did not object to Fair Cape advertising its product but contended that this was a flagship case on advertising to children, and that the appeals panel ought to interpret the code purposively and in such a way to preclude the advertising of products containing sugar to children.
She argued that she was concerned with the wording of the code, arguing that the word ‘persuade’ should be replaced with ‘communicate’ so that the clause should be amended from ,“Food and beverage product advertising should not directly appeal to children of 12-years old and under to persuade their parents or others to buy advertised products for them,” to rather state, “Food and beverage product advertising should not directly appeal to children of 12-years old and under to communicate to their parents or others to buy advertised products for them.”
“As we understood the argument, it is that there is concern with the use of persuasion in the clause, because it is commonly accepted that children are not able to persuade their parents to purchase particular products. Instead, parents are the ones making the purchasing decisions. While we as parents on the appeal panel may have experiential knowledge of the ability or otherwise of children to persuade their parents to purchase certain products over others, there is no expert evidence placed before us to support this assertion,” the board said.
In the present case, the packaging does not in our view fall foul of [the advertising code] clause properly construed. It is correct that the product is directed at children through the use of the Barbie character ...
— Advertising Regulatory Board
Fair Cape argued that they are required to comply with the code, and that they had done so. It did not dispute the harmful effects of added sugar and its effects on children’s health, but argued that they had not contravened the advertising code.
Considering the relevant clauses, the board looked at those relating to social values and food and beverage product advertising and how they relate to appealing to children under 12.
The section relating to social values recognises that children are impressionable and therefore should not be subjected to advertising that misleads them about the benefits of using a product, and that the advertising should not undermine the role of parents or others responsible for their welfare in guiding their diet and lifestyle choices.
“In the present case, the packaging does not in our view fall foul of [the advertising code] clause properly construed. It is correct that the product is directed at children through the use of the Barbie character ... This is specifically permitted. In this regard the clause specifically provides that the prohibition against the use of celebrities or cartoon characters in television advertising targeted at children under 12 does not apply to packaging and the use of characters on products such as chocolate milk is permitted,” the panel said.
The panel said while they understood Kruger’s concerns with the high levels of added sugar in the product, this did fall under the advertising complaint and so her appeal had to be dismissed.
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