Why the UK government had to allow HFSS online ads ‘loophole’

Boris Johnson’s attempts to fight the invasion of foreign HFSS advertisers is less like Churchill and more like Canute, writes law firm Lewis Silkin’s partner and advertising law specialist.

German clothing company KaiAviation has taught us a history lesson that Boris Johnson could learn from.

If a foreign advertiser decides to ignore British advertising rules, there’s not a whole lot that we can do about it.

Maybe that is why, following yesterday’s Advertising Standards Authority decision about KaiAviation, today’s announcement from the government about the new restrictions on high fat, sugar and salt (HFSS) advertising won’t apply to companies’ own websites or social media pages.

The UK’s system of advertising self-regulation has historically been effective because, even if an advertiser wants to ignore an ASA ruling, the media owners are bound into the system through the membership obligations of their various trade associations.

This means broadcasters, publishers and other media owners simply won’t carry an ad that’s been banned. But for media such as advertiser’s own websites and social media pages, that don’t have that third party media interface, enforcement is far more reliant on the co-operation of the advertisers themselves.

If, however, they’re not breaking the laws or self-regulatory codes in the country where they’re based, why on earth should they obey the UK’s rules?

Look at what already happens when the rules are broken

Some readers may be offended by the images of KaiAviation’s advertising, for which I apologise, but without the images, its hard to understand the story. In terms of the degree of nudity and the age of the models, these ads are less contentious than those by American Apparel, which admittedly is setting the bar pretty low.

The bigger problem is the harmful gender stereotyping. KaiAviation’s entire shtick appears to be to apply aeronautical phrases, such as “remove before flight” and “follow me” to cheap items of clothing, such as singlets and briefs. These are then advertised by models standing in front of planes, including, bizarrely, a World War Two vintage Messerschmidt Me-109. One can only hope that this is not a particularly profitable business model.

The ASA’s investigation was triggered by a single complaint about ads published in the February and March editions of Pilot magazine, published in the UK by a British publisher, Archant. Apparently the complainant had to wait until the ad had been published twice before being sufficiently offended to register a complaint.

The ASA wrote to KaiAviation by email and post and even obtained proof of delivery, but did not receive the courtesy of a reply. Perhaps they should have tried air mail?

The watchdog also asked the publisher, Archant, to undertake that they would forward their correspondence to KaiAviation. I have to tell you now that no such undertaking has been received, and that consequently, this complaint has been upheld.

But let’s not be be beastly to KaiAviation. The ASA did not think that the image of the woman in the vest standing next to the aeroplane (not the Messerschmidt) was in a sexualised pose.  In more good news for the Persons Unknown, trading as KaiAviation, the ASA also concluded that another picture of a singlet, briefs and thongs were relevant to the clothes being advertised and unlikely to cause serious or widespread offence, or harm.

Has the government created a loophole?

While the government is working on its plans to ban HFSS advertising online, this ASA investigation demonstrates that advertisers based outside the UK are likely to ignore any such ban if it is not reflected in their local law and regulation.

In this case, there is a third party media interface, namely the publisher, Archant, who may be persuaded not to publish the ad again. Indeed, they are probably obliged not to do so by virtue of their membership of a trade association.

However, the images continue to be published on KaiAviation’s own website, hosted in Germany, and any attempt by the ASA or any other British regulator to block access by British internet users simply won’t fly.

So Mr Johnson’s attempts to fight the invasion of foreign HFSS advertisers is less like Churchill fighting on the beaches, and more like an earlier British leader, King Canute, drowning as the tide came in.

However, it seems the government have finally acknowledged this problem, despite some news outlets today describing their solution as a “loophole” for HFSS advertisers.

Banning HFSS advertising on websites and social media pages by British advertisers would have put them at a significant competitive disadvantage compared with foreign advertisers who could simply ignore the UK’s rules.

So, whatever you think about the HFSS ban, UK advertisers are at least being given the chance to operate on a level playing field by carving out their own websites and social media.

A version of this article first appeared on Lewis Silkin’s website but has been updated for Mediatel News.