Case Report. QSR Advertising and Marketing Message Advertising and Marketing Message must comply

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1 Case Report 1 Case Number 0558/14 2 Advertiser McDonald's Aust Ltd 3 Product Food / Beverages 4 Type of Advertisement / media App 5 Date of Determination 28/01/ DETERMINATION Dismissed ISSUES RAISED QSR Advertising and Marketing Message Advertising and Marketing Message must comply DESCRIPTION OF THE ADVERTISEMENT The App is a game which allows players to dive through the sky, collecting coins as they avoid obstacles inspired by modern popular culture. THE COMPLAINT A sample of comments which the complainant/s made regarding this advertisement included the following: We submit the app is an interactive game, which is directed primarily to children within the meaning of Article 3.5 of the QSRI. We further submit the app is a marketing communication that breaches Article 3.1 of the QSRI, which provides that advertising and Marketing Communications to Children for food and/or beverages must: 1. Represent healthier choices, as determined by a defined set of Nutrition Criteria for assessing Children's meals (see Appendix 1); and 2. Represent a healthy lifestyle, designed to appeal to the intended audience through messaging that encourages: 1. Good dietary habits, consistent with established scientific or government criteria; and 2. Physical activity.

2 An interactive game featuring products The app is clearly an interactive game, using the touch technology on smart phones and tablets. It features a recognisable McDonalds store with Golden Arches where McDonalds products are sold. It is promoted using a picture of burger and the slogan win free food. A game directed primarily to children In support of our submission the app is directed primarily to children, we draw the board s attention to the following salient features: 1. The visuals used are cartoons depicting adventure scenarios that are strongly reminiscent of children s adventure cartoons. There is a sloth, an evil toaster, a cute purple cat, a purple plane. 2. The style of the cartoons is similar to children s cartoons. The game uses a simplistic animation style. We submit that currently airing cartoons for younger children, which use similar animation styles, include A Very Barry Christmas and the Adventures of Bottle Top Bill, on ABC4Kids. 3. The themes used include adventure, questing, and a simplistic struggle between good and evil. 4. The language used is appealing to young children. Phrases such as an amazing awesome cool dude and an evil toaster are of a type used by school-age children in upper primary school and high school. 5. The audio that accompanies the app is childish, catchy and like music used in console games of the kind played by young children. Relevance of the advertiser s comments on the intended audience We note the advertiser s Terms & Conditions for the App assert that it may only be used by persons aged 14 years or older, and that if users are under 18, they require the consent of a parent or guardian. The presence of this statement is irrelevant to the question of whether the themes, language and visuals, when viewed as a whole, are directed primarily to children. All these elements should be considered by the Board assess its target audience, and that an age restriction presented in a cartoon picture when the app is first opened, which is bypassed by a single touch is far from determinative of the issue. The board must consider the combined impact of the elements of the app and may draw on its own experience with both children and advertising to assess whether the themes, language and visuals used in the app are directed to children, as in decision 0247/13. We anticipate the advertiser may argue that the fact of the app being downloaded on tablets and smart phones suggests it is not directed to children. We submit this is not decisive of the issue, with many apps and games for children available on tablets and smart phones. The ACMA found in 2008 that boys and girls spent an average of one hour and 17 minutes online each day, ranging from an average of 30 minutes for 8-11 year olds, to two hours and 24

3 minutes for year olds (Australian Communications and Media Authority (2007) Media and Communications in Australian Families. Canberra, ACT: Commonwealth of Australia.). More recently, the 2013 New Generations study of 1800 children and parents commissioned by cable TV station Cartoon Network found that the use of apps by children aged between four and 14 had doubled to 69% in the preceding 18 months, with children using an average of seven apps in the month leading up to the study ( ). The study found that on average, children are accessing 7.1 apps per month ( The app does not promote good dietary habits or physical activity Article 3.1 of the QSRI requires that advertising and Marketing Communications to Children for food and/or beverages must: a. Represent healthier choices, as determined by a defined set of Nutrition Criteria for assessing Children's meals (see Appendix 1); and b. Represent a healthy lifestyle, designed to appeal to the intended audience through messaging that encourages: a. Good dietary habits, consistent with established scientific or government criteria; and b. Physical activity. The Nutrition Criteria for assessing children s meals is outlined in Appendix 1 to the Initiative. Relevantly, s.1 of the Nutrition Criteria requires that: a. The meal must be comprised of at least a main and a beverage. b. The meal should reflect general principles of healthy eating as defined by credible nutrition authorities. The items promoted in this marketing communication are not meals containing a main and a beverage, but are snack items, such as apple pies, individual burgers and soft serve cones. The failure to promote a main with a beverage in a communication to children amounts to breach of Article 3.1 of the QSRI. Several of these items are also likely to contain levels of certain nutrients that mean they are not healthier dietary choices as set out in s.3 of Appendix 1 to the QSRI. For example, a McDonald s apple pie is understood to contain 970kj, 13.4 grams of fat and 24.6 mg of sodium, and a cheeseburger delivers 1180kJ, 12.4 grams fat and 26.3 mg sodium. We also submit that the app breaches s.3.1 (b) of the QSRI as it does not promote good dietary habits consistent with established scientific or government standards, and does not promote physical activity. The Australian Dietary Guidelines (2013) recommend that Australians limit their intake of foods containing saturated fat, added salt and added sugars, such as fried foods and savoury snacks. Studies suggest that frequency of consuming takeaway food increases with age and is associated with higher intakes of energy, total fat

4 and sodium, which are associated with overweight, obesity and other negative health outcomes. The promotion of snacks high in these concerning ingredients, (snacks being commonly understood to be consumed between meals and in addition to dietary intake of energy from main meals), is not consistent with the Australian Dietary Guidelines. The app promotes daily giveaways, which is inconsistent with the Dietary Guidelines for Children and Adolescents in Australia (2013) which recommend only occasional consumption of very small amounts of such discretionary foods. The Board has previously noted that merely omitting any references to unhealthy eating choices is not sufficient to discharge the equivalent obligation to represent healthy dietary choices and physical activity contained in the RCMI (see decision 0454/11). It is quite clear that the advertiser is required to positively encourage good dietary habits and physical activity, which the advertiser has failed to do in this advertisement. In relation to the promotion of physical activity, the Board has previously found that mere suggestion of adventure in advertising does not amount to an implication or encouragement of physical activity (decision 0454/11). Consistent with that precedent, it is submitted that although the advertisement shows adventure scenarios, it does not meet the test of positively promoting physical activity. Conclusion Accordingly, we submit the app breaches the above provisions of the QSRI, and we respectfully request the Board require the advertiser to withdraw the app immediately. THE ADVERTISER S RESPONSE Comments which the advertiser made in response to the complainant/s regarding this advertisement include the following: McDonald s thanks the Advertising Standards Bureau (ASB) for the opportunity to provide submissions in response to complaint number 0558 of 2014 (Complaint) in respect of the McDonald s Drop Into Macca s Application (App). We do not consider that the App is in breach of the Australian Food and Grocery Council Quick Service Restaurant Industry Initiative for Responsible Advertising and Marketing to Children (QSRI), the AANA Code for Advertising and Marketing Communications to Children (AANA Children s Code) or the AANA Food and Beverages Advertising and Marketing Communications Code (AANA Food Code). We provide our reasons in respect of each of the Codes below. QSRI We submit that the App is not directed primarily to children under 14 and accordingly does not fall within the ambit of the QSRI.

5 The App would be caught by the QSRI if it could be considered that: 1. The medium is directed primarily to children; or 2. The medium attracts an audience share of greater than 35% of children; or 3. The App is directed primarily to children (irrespective of placement). S.1.3 of the QSRI would also apply if the App, as an interactive game, was deemed to be directed primarily children. We are of the view that the App does not fall under any the above provisions for the reasons set out below. Medium is not directed primarily to children and does not attract an audience of greater than 35% of children. The App is available for download via the App Store on itunes or Google Play, which require an account holder aged at least 13 years of age. These services are not available in a medium that is directly primarily to children nor would they attract an audience of greater than 35% of children. This position has been confirmed by the ASB in respect of apps in numerous cases, including case 0383/14. In that case the ASB also determined that the medium of an interactive game or mobile app is not a medium that is directed primarily to children. Further, the App is a game that is restricted to players aged 14 years or over. This age restriction is communicated by various means, including: a) On each of the App Store and Google Play pages advertising the App for download the following notice is included: You must be an Australian resident 14+ to download and play the game. Under 18 s must have parental consent (see Annexure 1). The App is also rated by the App Store as requiring download by users of at least 17 years of age. b) The Terms of Use of the App (see Annexure 2) require that the App only be used by Australian residents aged 14 years or older. This is communicated in the body of the Terms of Use in clause 4 as well as an upfront disclosure at the start of the Terms of Use. c) The opening screen of the App (see Annexure 3) clearly communicates that players must be 14 years or over and players must tap a button acknowledging this requirement in order to proceed to the next screen. d) Any advertising about the App included the notice: You must be an Australian resident 14+ to download and play the game. Under 18 s must have parental consent. App is not directed primarily to Children (irrespective of placement) We submit that the content of the App is not directed primarily to children, as would be required for the QSRI to apply, for the reasons set out below. 1) Directed primarily to children

6 The App was created for a target audience of millennials (or Generation Y ), being young adults born in the 1980 s (see Annexure 4). This audience comprises of at least twentyyear olds who were grew up in the 1990 s. It is clear that this generation is the primary audience as the themes, visuals, music and language, as further described below, are all referential to popular culture from the 1990s that would not be understood by children nor of appeal to them. 2) Theme The App allows players to dive through the sky, collecting coins as they avoid obstacles inspired by modern popular culture. The obstacles include a range of Internet meme references such as horse heads, budgie smugglers, evil toasters and hipster ducks as well as the internet sensation, the screaming goat. By beating the daily target, players were able to enter a competition (which ended 23 December 2014) to win free McDonald s food items, bonus in-game coins or entry into a grand prize draw for the chance to win one of ten $1,000 Visa gift cards. The theme of the App is Internet meme culture appealing to the target millennial audience. It is not a theme that would appeal or be understood by children under 14. The complainant refers to themes of adventure and questing, which should be noted as being applicable generally to most character-driven games and not only child themed games. In any case, the adventure and/or quest in the App is difficult, as players require a degree of dexterity (of at least a young adult) to tilt their phone to avoid the obstacles and reach a daily target that is not simple to achieve. The rewards for beating the target are also clearly targeted to the millennial audience and are not of childish appeal, such as costumes (for the player s character to wear) referential to popular culture icons (e.g. The Neil, being an astronaut outfit, or The Fonz, being a cool guy in a leather jacket, hair gelled, sunglasses) or power-ups with Internet meme cultural references (e.g. Horse Head Pro being a horse mask for the character (see Further, the competition prizes (of which the player is eligible to win once beating the target) include free McDonald s food prizes and $1,000 Visa gift cards, which are prizes that are appealing to people who pay for food and appreciate monetary valued prizes. These prizes are appropriate to adults and not children. Further, as mentioned earlier, under the Terms of Use of the App, the game and the rewards are only available to persons 14 years or over. 3) Visuals and Music The design of the App was created to be reminiscent of classic style arcade games, Gameboy games and old school Nintendo games, again to attract a millennial audience that would have grown up playing these games. The visuals were intentionally designed not to be childish or similar to children s cartoons, using realistic proportions for the characters and avoiding the typical children s animation features like big heads with little bodies or eyes that pop-out (see Annexure 5). Characters appealing to children or reminiscent of children s animation would not be attractive to a young adult and would not be in keeping with the objective of the App in its intention to appeal to the target millennial audience. The main character Carl in particular has an adult hipster appearance, and the other visuals like the evil toaster, horse head and grumpy cat are all referential to Internet-memes, well-known to

7 the audience in which the App is directed and unlikely to be understood by children. The music and sound effects of the App were also selected to conjure a modernised style of classic arcade gaming of familiarity to millennials, like Sega s Sonic the Hedgehog. The sounds were chosen to match this style. Children would not be familiar with arcade games and the sounds would deliberately chosen so as differentiate from a child s game. 4) Language The language of the App is also appropriate to the millennial audience, and is unlikely to capture a child s attention or engage a child. The App is full of references to popular culture of the 1990s and uses adult-style, tongue-and-cheek humour including sarcasm and parody, unlikely to be understood by children. Examples of such language are included in Annexure 6, such as Quit the conspiracy theories, we won t give your details to the NSA which appears when a player is asked to login. The game itself is also very text-heavy (see for example the description of the main character Carl on page 12 of Annexure 6), another component that is not typical of children s games or attractive to them. As the above demonstrates, it is our position that the various elements of the App, the overall look and feel and the objective of the game are clearly not directed primarily to children and accordingly the App does not fall under the QSRI. AANA Children s Code & AANA Food Code McDonald s is of the view that the App is not in breach of the AANA Children s Code as the App, for the reasons mentioned above, is not directed to children nor are the McDonald s food prizes included in the game of principal appeal to children. Happy Meals are never featured. The App is also not in breach of the AANA Food Code as the App does not undermine the importance of a balanced diet or healthy lifestyle or encourage excessive consumption by means contrary to prevailing community standards. Consistent with the ASB s view in Case 0383/13, the promotion of a McDonald s game is not in breach of community standards generally and that promotion of free food vouchers is not inconsistent with or undermining of a balanced diet or healthy lifestyles. In any case, the food prize vouchers included in the competition were subject to 24 hour time limits, were only eligible to be won once a player reached a daily target (which is not easy), and were limited to one food prize per player per day of the competition. Conclusion We submit that the App does not breach the Codes and the Complaint should be dismissed. We thank the ASB for providing us the opportunity to respond to the Complaint and look forward to learning the outcome. McDonald s takes its responsibilities under the Codes very seriously and is committed to ensuring compliance. THE DETERMINATION

8 The Advertising Standards Board ( the Board ) considered whether this advertisement breaches the Australian Quick Service Restaurant Industry Initiative for Responsible Advertising and Marketing to Children (the QSR Initiative ), the AANA Food and Beverages Advertising and Marketing Communications Code (the Food and Beverages Code ) and the AANA Code for Advertising and Marketing Communications to Children (the Children s Code ). The Board noted the complainant s concern that the advertisement is promoting unhealthy food to children. The Board reviewed the advertisement and noted the advertiser s response. The Board noted that the QSR Initiative is designed to ensure that only food and beverages that represent healthier choices are promoted directly to children. The Board considered the definition of advertising or marketing communications to children within the QSR Initiative. The definition states that Advertising or Marketing Communications which, having regard to the theme, visuals and language used, are directed primarily to Children and are for food and/or beverage products. Under this initiative Children means persons under the age of 14 years of age. The Board first considered whether the App is an Advertising or Marketing communication. The Board considered its decision in 0187/12 (Stuart Alexander Chupa Chups Game) and noted that in relation to that interactive game available as an App the Board had stated: The Board considered that the creation of the App has incurred resources for the marketer and resources in making the App available through itunes and that it is also within the definition of advertising or marketing communication. The Board noted the significant branding within the Chupa Chups App and agreed that the Chupa Chups App could be considered to draw the attention of a segment of the public to a product in a manner calculated to promote or oppose directly or indirectly that product In a similar vein, the Board considered that the McDonald s Drop into Maccas App currently under review is clearly branded with McDonald s material and can be considered to be a marketing communication. The Board noted that McDonald s is a signatory to the Quick Service Restaurant Initiative for Responsible Advertising and Marketing for Children (QSRI) and determined that the provisions of the QSRI apply to this marketing communication. The Board noted that, if it determines that the game is a Marketing Communication that is directed primarily to Children, it must consider principle S1.3 of the QSRI which provides: Signatories must ensure that any interactive game directly primarily to Children which includes the Signatory s food and/or beverage products is consistent with S1.1 The Board noted that the QSR Initiative captures Advertising and Marketing Communications to Children where: 1. the theme, visuals and language used, are directed primarily to Children and are

9 for food and/or beverage products; 2. Advertising or Marketing Communications that are placed in Medium that is directed primarily to Children (in relation to television this includes all C and P rated programs and other rated programs that are directed primarily to Children through their themes, visuals and language); and/or 3. Where Children represent 35 per cent or more of the audience of the Medium. With regards to points 2 and 3, the Board considered that an App available for download from itunes (or similar internet based services) is not available in a medium that is directed primarily to Children or would attract an audience of greater than 35% of Children. The Board acknowledged that Apps require an account holder to be over 13 and that the age gating on the game states that the game is to be downloaded by people aged over 14 years. Consistent with a previous determination in case 0383/13 the Board considered that this medium of an interactive game or App is not a medium that is directed primarily to Children as there are many Apps and games available in the modern Australian community for a wide range of age groups. On this basis the Board determined that the advertisement did not meet points 2 or 3 of the QSRI in that it was not broadcast in a Medium that is directed primarily to Children or where Children represent 35 per cent or more of the audience of the Medium. The Board noted however that with regards to point 1 the Board must consider whether the communication activity is directed primarily to Children regardless of its placement. The Board considered that it must therefore consider the content of the game in the form in which it is finally downloaded and available for access by any person. The Board noted that the dictionary definition of primarily is in the first place and that to be within the QSRI the Board must find that the advertisement is clearly aimed in the first instance at Children under 14 and that it must have regard to the theme, visuals and language used in determining this issue. The Board noted the advertiser s response that the App was created to be reminiscent of classic style arcade games to attract a millennial audience that would have grown up playing these games. The Board noted the theme of the App (guiding a sky-diver through the sky, collecting coins whilst avoiding obstacles) and considered that the popular culture references throughout the game ( The Neil for Neil Armstrong, The Fonz from the TV series Happy Days ) are aimed at adults who grew up in the 80s and 90s and would be familiar with these reference. Notwithstanding the cultural references the Board noted that the actual game itself is very simple as it involves tilting the electronic device being used to play the App so that the main character is able to collect coins as he falls through the sky. The Board considered that this theme of collecting coins is relatively simple and would be of appeal to all ages. The Board also considered the rewards in the game the number of coins you collect leads to the chance to redeem a discount voucher to be used in McDonald s or to enter a draw to win a Visa gift card. The Board considered that this is a reward which is appealing to people who pay for food and would be incentivised to play the game and use the vouchers when visiting the advertiser s restaurants. The Board considered that this aspect of the game is more appealing to older teenagers and to adults. Overall the Board considered that whilst the simplistic nature of the game itself could be of appeal to children in the

10 Board s view the overall theme is not clearly directed primarily at Children. The Board then noted the visuals of the advertisement. The Board noted the game features a cartoon character falling through the sky whilst avoiding objects based on memes and popular culture. The Board considered that the style of game is common among many interactive games that involve the collection of quantities of a certain thing or token in order to progress or to achieve certain goals. The Board acknowledged that children would find most cartoon style games to be of appeal but considered in this instance the cartoon images are designed to reflect popular culture references aimed at adults and there is no particular context or images that give the cartoon character or any of the visuals particular direction to children other than the fact they are animated. The Board noted the language used and considered that the popular culture references, the descriptions of the main character and the way in which the rules are communicated within the App is language aimed at older teenagers and adults rather than Children. Overall the Board considered that consistent with previous determinations for similar complaints (0229/11, 0190/13, 0383/13) including a cartoon image will not of itself mean that an advertisement is directed primarily to Children. It is essential for the Board to consider all elements of the advertisement and to make a decision based on how all of the elements of the advertisement interact, and the overall impression that they make, in determining whether an advertisement is clearly directed primarily to Children. In this instance the Board considered that whilst the theme, visuals and language of the Drop into Maccas App would be attractive to children they would not be considered to be directed primarily to Children. Based on the requirements outlined in the Initiative the Board considered that as the advertisement was not directed primarily to Children, did not appear in a medium directed primarily to Children and did not appear in a medium which attracts an audience share of more than 35% of Children, the QRSI does not apply in this instance. The Board then considered whether the advertisement complied with the requirements of the AANA Code for Advertising and Marketing Communications to Children (The Children s Code). To fall within this Code, or Part 3 of the AANA Food and Beverages Advertising and Marketing Communications Code (The Food Code), Advertising or Marketing Communications to Children means Advertising or Marketing Communications which, having regard to the theme, visuals and language used, are directed primarily to Children and are for Product. For the reasons outlined above, the Board considered that the advertisement is not directed primarily to Children. The Board determined that as this App is not directed primarily to Children the Children s Code and Part 3 of the Food Code do not apply. Finding that the advertisement did not breach the QSRI, the AANA Food Code or the AANA Children s Code, the Board dismissed the complaint.

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