‘Brand’ new guidance on advertising restrictions for less healthy food and drink subject to consultation

The Committees of Advertising Practice (CAP and BCAP) have issued a further consultation on the implementation of new restrictions on advertising ‘less healthy’ food and drink.

What are the new restrictions?  

The new restrictions include a 9pm watershed on the advertising of certain less healthy food and drink on broadcast TV, and a complete ban on paid for advertising of certain less healthy food and drink online.  Our previous article TV and online advertising restrictions for less healthy food and drink are coming - are you ready? sets out broadly which products are caught by the restrictions and the main exemptions.  

Original guidance 

Following a consultation in 2023, CAP and BCAP released draft guidance that covered how the scope of the restrictions affects brand advertising.  

Under the originally proposed guidance, with qualifications, brand advertising that related to a range of entirely less healthy products would fall outside the scope of the restrictions provided that there were no depictions or references to a specific less healthy product in the ad.  This position was based, in part, on government statements such as “brand advertising [is exempt from the restrictions], provided there are no identifiable HFSS products in the adverts”. This exemption was designed to ensure that brands are not pigeonholed as synonymous with less healthy products and have the freedom to reformulate and move towards offering healthier products.  

The legislation itself does not mention brand advertising.  Rather, the legislation prohibits the advertising of “identifiable” less healthy food or drink products and states that a product is "identifiable", in relation to advertisements, “if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that product,” known as the ‘identifiability test’.  

U-turn

CAP reflected on the draft guidance and, on 13 January 2025, issued a statement that some parts of the proposed guidance were likely to require revision.  CAP stated that it was likely to clarify that even if an ad does not explicitly refer to or feature a less healthy product, it may still be restricted where persons in the UK could reasonably be expected to be able to identify the ad as being for a less healthy product or less healthy products.  

New guidance

CAP and BCAP have now published a new consultation and revised guidance which aims to clarify how the Advertising Standards Authority (“ASA”) will enforce these rules, particularly concerning ads that may not directly reference less healthy food and drink but could still be restricted due to branding and content. The consultation invites feedback from the public and stakeholders to ensure the guidance aligns with legal requirements and effectively implements the restrictions.  

What does the new guidance say about brand advertising?  

The new guidance states that an ad that does not directly refer to or depict a less healthy product may still be within scope of the restrictions, if the content of the ad includes branding closely associated with a specific less healthy product or products.  

The guidance states that ‘branding’ should be understood in a broad sense encompassing a diverse range of content and techniques used in advertising, such as logos, livery, straplines, fonts, colour schemes, characters, audio cues and jingles.  

The guidance explains that the ASA will apply the ‘identifiability test’ to all potentially in-scope ads, including those that only include branding.  The ASA will not assess an ad based on the advertiser's likely or expressed intent but will objectively assess the ad's content and context, and how the ad is likely to be perceived.

The guidance sets out the types of brand advertisement that are more likely or less likely to be restricted:

• brand advertisements that do not explicitly feature or refer to a product may be restricted, where people could reasonably be expected to be able to identify the ad as being for such a product.
• branding related to a product or product range – An ad that features branding used only to identify a specific less healthy product or range of entirely less healthy products is likely to be restricted.  Where a piece of branding featured in an ad relates to a mixed range of less healthy and non-less healthy products, the ASA will consider the proportion of less healthy products within that range, and whether there are a core range or any dominant products that are less healthy. 
• branding related to a company or master brand – The ASA will give particular weight to the content of the ad and how people are likely to perceive what the ad is “for” under the identifiability test. For example, an ad featuring a brand, or an element of branding, that is associated exclusively with a single less healthy product or a range of less healthy products, is more likely to be restricted. 
• suppliers of both less healthy and non-less healthy products – Where the advertiser manufactures and/or sells a mix of less healthy and non-less healthy products, an ad that does not explicitly depict or directly refer to a less healthy product is less likely to be restricted. However, the ASA will consider the proportion of less healthy products under the brand, whether it includes a core range of products or any dominant products that are less healthy, and also have regard to the wider context of a brand’s identity from the likely perspective of people viewing the ad.  
• branding relating to a wider commercial entity – Company or corporate branding is less likely to be within scope if it relates to a wider group entity and the ad promotes e.g., non-product attributes like a company’s commitments to sustainability or social responsibility.  

In each case, the ASA will consider the cumulative effect of all the information conveyed by an ad to determine whether it is for an identifiable less healthy product, in line with the identifiability test.

What do I need to do now?

Food businesses caught by the new restrictions should strongly consider providing feedback on the new draft guidance to ensure their voice is heard ahead of the new restrictions coming into force.  The consultation closes on 18 March 2025 at 5:00pm.