Three emails from the food firm dated between 12-20 August 2023 advertised special offers on its products over the summer, including the Doritos King Box, the Spicy Mayo Chicken Royale and the Spicy Mayo Whopper.
Complainant Food Active challenged whether the ads were for HFSS products that were directed at children through the selection of media or context in which they appeared.
BKUK Group Ltd t/a Burger King claimed it had taken reasonable steps to avoid targeting their ads at under 15-year-olds. It argued that consumers signing up for its ‘YourBurgerKing’ service confirmed they were over 16 or had received permission from their parent or guardian before using it.
Sign-up process
However, Burger King admitted it did not prevent people who registered their age as being under 16 from signing up and that the age field on the sign-up form was optional, since it believed it was not mandatory for a customer to share their date of birth.
The Advertising Standards Agency (ASA) upheld the complaint, noting that Burger King had not taken step to ensure under-16s did not receive marketing emails for HFSS products.
Committees of Advertising Practice (CAP) guidance states 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.
While the terms of service on the ‘YourBurgerKing’ site did state the service was intended for use by people who were at least 16 years old, or had obtained permission from their parent or guardian, this information was not present on the sign-up page.
Steps not taken
What’s more, steps had not been taken to prevent customers who had said they were under-16 but not provided their date of birth from receiving advertising emails. It was also noted that only children over the age of 13 could provide their own consent.
The biggest piece of evidence against Burger King was that an individual with a registered age of a 15-year-old had received the advertising emails.
“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,” said the ASA.
The ads were found to have breached CAP code (Edition 12) rule 15.18 (HFSS Product Ad Placement) and must not appear again in the form complained about.
