Free Items Are Not Allowed for Certain Food Categories

Within the scope of advertising restrictions on the foods that are not recommended for excessive consumption, on December 28, 2018, the Advertising Regulation introduced a new restriction stating that gifts that would appeal to the interests and taste of children shall not be given, and other similar marketing techniques that target children shall not be applied within the scope of practices which aim to increase the sales of foods of which excessive consumption is not recommended.

This rule has been highly criticized because of the ambiguity of the terms. Indeed, this rule provided no definition for the terms, “gift” and “marketing techniques.” The term “gift” was assumed to contain any items, such as toys, free product coupons, etc. The term “marketing techniques” was not defined either. Since this term is quite broad and open to misinterpretation by the relevant authorities, jurists argued that “marketing techniques” could be defined as any acts and promotional activities with an aim towards advertising, encouraging, and attracting the sale of goods and services.

While this rule was clear for fast food kids’ menus with toys, as well as potato chips products that give free coupons, coins, and collectible items, this rule mainly poses risks for food products sold as a combination of foods and toys, such as chocolate eggs that contain a toy inside. It was ambiguous in this rule as to whether or not these products, themselves, may be considered as marketing techniques of the manufacturer company to sell their chocolate products, or if the product, itself, could be considered as a unique combination of food product and toy, since the product does not provide gifts, separately, to increase its sales.

Because of this incertitude, the Ministry of Trade made an amendment on October 12, 2019. In the amended rule, the term, “marketing techniques,” was removed, and it was clearly stipulated that “no additional products” that would appeal to the interests and, as well, particular tastes of children, shall be given as a gift along with the main product. Upon these changes, it seems that the ambiguousness posed by the aforementioned restrictions was cleared. It can be said that the food products sold in combination with toys inside, like chocolate eggs containing a toy, inside should be excluded from the scope of these new rules.

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