Under existing sex discrimination legislation in the UK dating back as far as 1975, in principle it has been unlawful for any trader, event organiser, brand licensee or advertiser responsible in some way for providing goods, facilities or services to the public, to discriminate on the grounds of sex against a person who wishes to obtain or use those goods, facilities or services e.g. by refusing to supply on comparable terms or at all.
There haven’t been a huge number of notable cases on the point to illustrate this, so I thought I’d make up my own examples.
Nestlé’s 'Not for Girls' advertising campaign, in which a series of women very obviously dressed up as stereotypical male characters before being ‘found out’ as women and refused Yorkie bars by shopkeepers, represents a good staring point.
In my Boys Month article featured elsewhere on the site, I commented that the campaign was legal because there was no sex discrimination at point of sale and there was a general understanding that the advertising was not seriously suggesting the contrary.
However, if for purely non-fattening and hypothetical purposes we were to assume that Nestle had backed up the campaign with a direction to retailers not to sell to women or girls, then this would have amounted to unlawful, 'direct', sex discrimination.
Had Nestlé required confectioners only to sell to people over six foot in height, then this would have amounted to unlawful 'indirect' sex discrimination for the reason that demographically a significantly higher proportion of the female population would be prevented from buying Yorkie bars than males.
Nestlé did actually produce a limited edition Yorkie bar for a while, which it advertised as being just for girls and presented in pink packaging.
To take our chocolaty charade a bite further, had Nestlé produced the pink bars in very limited numbers and sold them alongside the blue bars branded with the 'Not For Girls' logo with the direction to confectioners not to sell blue to girls or pink to boys, would this still have been discriminatory?
In short yes – the only exception which might have been relevant is if the differential between pink and blue bars is still sufficient to meet demand or is at least proportionate to actuarial numbers of males and females.
And in answer to the question would it have made any difference if supplies of blue and pink bars were sufficient, the answer would again be that such chocolate apartheid would still have been unlawful.
And finally, don’t forget that if you’re marketing food or drink to children using boy-brands, then prepare for the only noise you’ll hear to be that of the ASA investigation-envelope hitting the doormat. But that minefield is for another time.