Fair Cape Dairies advertising complaint dismissed by ARB

The case was dismissed by the ARB.

The complaint alleged that the product, characterised as an "unhealthy sugary drink," was being marketed inappropriately to young children using the Barbie doll image. The complainant argued that this violated Clause 7.3 of the Food and Beverage Code, which restricts advertising that directly appeals to children under twelve years old, aiming to persuade their parents or others to buy the advertised products.

Advertiser's defense

Fair Cape Dairies, represented by Robert de Rooy & Associates Inc., refuted the allegations on three main points:

1. Healthfulness of the product: The advertiser argued that their product is a nutritious whole milk dairy product. They emphasised that the packaging makes no claims about benefits from the product, and any sugar present is largely intrinsic, derived from lactose naturally found in milk.
2. Contextual misinterpretation: The advertiser contended that the complainant took Clause 7.3 out of context. They explained that the clause must be read in conjunction with the broader objectives of the Code, which include not misleading children about product benefits and not undermining the role of parents. They asserted that their packaging did neither.
3. Permitted character merchandising: They referenced Clause 8 of Appendix J, which allows the use of characters on the packaging, provided these characters do not appear in television advertising targeted at children under twelve years old.

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ARB's decision

The ARB concluded that the complaint did not demonstrate that the packaging violated Clause 7.3. The Directorate noted that the advertising did not instruct children to persuade their parents to buy the product or suggest negative consequences for not purchasing it. They also highlighted Clause 8, which specifically permits character merchandising on packaging as long as it does not appear in targeted television ads.

Ultimately, the ARB found no breach of the Advertising Code by Fair Cape Dairies, reinforcing that the use of the Barbie image on the packaging was within permissible bounds.