Background

The Health and Care Act 2022 amended the Communications Act 2003 to (amongst other things) introduce new restrictions on the advertising of 'less-healthy foods' (LHF). The changes come in to force in October 2025. 

The new restrictions prohibit advertising which features an 'identifiable' LHF on TV and on-demand programme services between 5.30-9pm, and also in paid-for space online at any time. The restrictions will therefore have a significant impact on how businesses that manufacture, sell or serve LHFs may advertise. 

To be classed as an LHF (and so in scope), a food or drink must be (i) high in fat, salt or sugar under the 2011 Nutrient Profiling Model Technical Guidance, and (ii) within one of the categories or foods or drinks set out in UK government Regulations in December 2024. 

When is a product 'identifiable'?

The rules state that a product is identifiable "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".

Original Guidance published by CAP

In 2023, CAP published draft guidance alongside a consultation which suggested that (broadly) the restrictions would not apply to an ad unless a specific LHF product was featured in that ad. Accordingly, the interpretation by CAP effectively made provision for a 'brand advertising exemption', whereby an ad that was solely for a company or range brand but not a specific product was not within scope of the restriction. This was something which numerous food manufacturer and retailer businesses had called for. The effect of such an exemption would have been that a company or range brand could be used in an advert, provided that a specific LHF was not depicted.

The u-turn

Some 12 months later, on 13 January 2025 CAP published a statement which indicated (i) it would be publishing revised guidance and (ii) a new consultation. In an unusual move, CAP also announced that "as a result of consultation responses and further legal advice, we now consider that the guidance should be more circumspect" in relation to the 'brand advertising exemption'. For example, the announcement states that "our revised guidance is likely to clarify that – even if your ad does not explicitly refer to or feature an LHF product – it may still be restricted". 

Yesterday, CAP published its new consultation and revised guidance and details can be found here: Further consultation on the implementation of new rules on ads for "less healthy" food and drink products - Annex B - ASA | CAP.

Given that the consultation will not be concluded until 18 March 2025, followed by a further period of time before CAP publishes its final guidance, the industry will not have long to adapt to the changes proposed.