Further consultation launched on advertising restrictions for “less healthy” food and drink

Restrictions on advertising for less healthy food and drink products

The Health and Care Act 2022^[2] amended the Communications Act 2003^[3] to prohibit advertising and sponsorship of identifiable “less healthy” food or drink products from appearing on TV and on-demand programme services (ODPS) between the hours of 5.30am and 9.00pm, and from being placed as paid-for advertisements online at any time. This legislation was introduced as part of the government’s strategy to reduce obesity.

Previous consultation

We reported on the outcome of Ofcom’s consultation regarding the implementation of the restrictions in July 2023 here, noting that Ofcom had designated the ASA as its co-regulator and tasked the ASA with preparing guidance regarding the new restrictions and amending the CAP and BCAP Codes accordingly.  

In December 2023, CAP and BCAP – on behalf of the ASA – consulted on the proposed guidance and amendments to the Advertising Codes. The 2023 guidance suggested that advertisements featuring branding associated with less healthy food or drink products that did not actually depict the products themselves may fall outside of the scope of the legislation. Non-industry responses to the consultation noted that this had the effect of widening legislative exemptions, and could therefore be seen as inconsistent with the legislation.

In light of such responses, the ASA sought legal advice and has revised the 2023 guidance in such a manner that it considered a subsequent consultation was necessary.  

Revised guidance

The revised guidance^[4] aligns more closely with the wording and intent of the legislation, suggesting more advertisements are likely to be in scope than initially indicated, such as:

• advertisements that do not depict less healthy products but where the advertised brand is associated with such products;
• advertisements that depict or refer to less healthy products (including in the background);
• advertisements promoting product ranges or a mixture of healthy and less healthy products e.g. a basket of goods; and
• advertisements that feature generic imagery of a range of less healthy products e.g. animated imagery of a brand’s less healthy food or drink products.

A new section^[5] has been added to the revised guidance which focuses on brand advertising. While the actual content of an advertisement will be considered in any assessment as to its compliance with the restriction, the consumer perception of what the advertisement is “for” will also be important. Brands with close associations to less healthy products may therefore fall within the scope of the legislation if the average consumer is reasonably likely to perceive their advertisement as being for less healthy products. CAP and BCAP have suggested that advertisements that aim to promote non-product attributes, such as sustainability or corporate social responsibility, are less likely to fall within the restrictions, but still remain subject to the identifiability test (see below) and therefore could be perceived as being advertisements for less healthy products.    

Other key changes

Focus on ‘identifiability test’

The revised guidance emphasises the importance of the ‘identifiability test’ in determining whether an advertisement should be within the scope of the legislation. Under the test:

“a less healthy product is considered "identifiable", in relation to an advertisement, if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisement as being for that product.”  

The ASA has noted that the test is objective, and it will consider the perception of an average consumer^[6] when applying the test.

Advertisers’ own marketing

The 2023 guidance noted that the legislation was unlikely to apply to advertisers’ own marketing communications, however the revised guidance^[7] has highlighted several instances in which advertisers’ own content may fall within the scope of the legislation, for example:

• posts on an advertiser’s social media account that are ‘boosted’ or ‘promoted’;  
• influencer social media posts, if the advertiser has paid for the content or has a reciprocal arrangement with the influencer. The ASA indicated that the influencers post will also likely be caught if the product has been gifted; and
• product listings on retail or delivery apps. While these would usually be out of scope, if there is an underlying commercial relationship with the supplier that includes a requirement for the placement of the product, this could be considered an advertisement, especially if the product receives enhanced prominence.  

Conclusion

The consultation closes on the 18 March 2025 and the ASA intends to publish the final guidance and updated CAP and BCAP rules by Spring 2025, ahead of the legislation coming into force on 1 October 2025.  

The changes to the guidance seem to uphold the government’s objectives behind the legislation but are likely to be a blow for advertisers with a strong brand or product range in less healthy food and drink products. While it has a greater effect on advertisers in the less healthy product market, all advertisers should pay attention to the new guidance, given its widened scope, to ensure they do not inadvertently fall foul of the rules when implemented later this year.