Further advertising restrictions for HFSS foods on the horizon

July 18, 2023
Burger, chips and drink

On 10 July 2023, Ofcom published a statement detailing the outcomes of its consultation on the future of advertising "less healthy" food and drink products in the UK, including those categorised as being High in Fat, Salt or Sugar (HFSS).

In summary, with effect from 1 October 2025, Ofcom-regulated TV services and on-demand programme services (ODPS) will be prohibited from including advertising and sponsorship for less healthy food and drink products before the 9pm watershed and paid-for online adverts for these products, where aimed at UK consumers, will be banned at any time.

Ofcom's statement sets out its proposed approach to implementing and enforcing the new restrictions.  

Current advertising regulation

The advertising of HFSS food and drink products is already heavily regulated. The UK's Advertising Standards Authority (ASA) currently enforces the CAP and BCAP Codes which, amongst other things, restrict media placements for HFSS food and drink products and their targeting to under-12s (see, for example, CAP Code rules 15.14, 15.15 and 15.18).  Further guidance is available on the ASA's website.  

The new restrictions

As part of the UK government's strategy for tackling obesity, the Health and Care Act 2022[1] amended the Communications Act 2003[2] last year, to introduce new restrictions on advertising and sponsorship of "less healthy" food and drink products.

The legislation, which will take effect from 1 October 2025[3]:

  • prohibits advertising and sponsorship between5.30am – 9.00pm on TV and ODPS for an identifiable less healthy food or drink product – i.e., a watershed restriction; and
  • prohibits paid-for advertisements, that are aimed at UK consumers, from being placed online at any time for an identifiable less healthy food or drink product.

Food and drink products are in-scope if defined as "less healthy" under the UK Department of Health's 2011 nutrient profiling guidance and specified in government regulations. A "less healthy" food or drink product is "identifiable", in relation to adverts, if persons in the UK (or any part of the UK) could reasonably be expected to be able to identify the advert as being for that product.

The restrictions will not apply to advertising by or on behalf of certain small or medium enterprises (SMEs).

Key issues and outcomes from Ofcom's consultation

Regulatory environment

The consultation concludes that Ofcom will proceed to designate the ASA as a co-regulator for the new prohibition on advertising in paid-for online space. The ASA's remit will include detailing the restrictions in an appropriate code, handling complaints from the public and industry, recording breaches by advertisers and securing their compliance with the prohibition, and the preparation of guidance. The relationship with BCAP will also be extended to cover the new TV watershed, and Ofcom will look to amend the BCAP Code and the Broadcasting Code to reflect the new watershed restrictions that apply to advertising and sponsorship on TV.  

Ofcom will retain its statutory powers and, where advertisers do not comply with the prohibition or the ASA's decisions, it can take enforcement action or impose financial penalties.

Definitions and further clarity

As part of the consultation, Ofcom responded to issues raised about the lack of clarity as to the meanings of key definitions within the restrictions – including "less healthy", "identifiable" and the definition of a "food or drink SME".  All these definitions are to be further described in the subsequent regulation and guidance described above – i.e., BCAP guidance (in respect of the TV watershed) and ASA guidance (in respect of the online advertising restrictions).  

Generic brand advertising

Many responses to Ofcom's consultation raised concerns about whether more generic brand advertising would be caught by the wording relating to "identifiable" less healthy food and drink products.

Ofcom noted that the Communications Act 2003 does not specify that brand advertising is exempt from the new restrictions but stated that applicable BCAP guidance is expected to address the meaning of an "identifiable" product, including in relation to brand references.

Timing for further guidance

Despite industry requests, no timeline has yet been provided for the publication of the expected further guidance.

As matters stand, brands selling "less healthy" and HFSS products have some time to plan for the impact of the new rules, but until further guidance is published there remain areas of uncertainty.

[1] Section 172 and Schedule 18 of the Health and Care Act 2022.

[2] Specifically, by inserting new requirements under Sections 321 and 368 of the Communications Act 2003.

[3] Originally intended to come into effect on 1 January 2023, these changes were subject to various delays.  On 9 December 2022, the Government announced a delay to the implementation of the new restrictions (which at that stage were due to take effect from 1 January 2024), with the result that they will take effect from 1 October 2025, to allow the industry sufficient time to prepare for implementation.

Caroline CopelandCaroline Copeland
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Caroline Copeland
Louise JordanLouise Jordan
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Louise Jordan
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