CAP and BCAP consultation on restrictions on ads for “less healthy” foods

The question

How is the ASA going to police new rules on advertising “less healthy” food and drinks (Less Healthy Products)?

The key takeaway

The CAP and BCAP Consultation has offered an early insight into how the Advertising Standards Agency (ASA) will police future restrictions on advertising Less Healthy Products.

The background

In 2022, the UK Government legislated to restrict the advertising of Less Healthy Products (via amendments to the Communications Act 2003), appointing Ofcom as the body responsible for policing those restrictions. In turn, Ofcom appointed the ASA as its frontline regulator.

Less Healthy Products are a sub-category of HFSS products (ie products high in fat, salt or sugar) which are already subject to advertising restrictions in the UK. The new rules will come into force in October 2025, and will drastically narrow the range of permitted ads by prohibiting Less Healthy Products from being advertised:

• on TV between 5:30am and 9:00pm.
• on on-demand programme services between 5:30am and 9:00pm.
• online at any time.

Those restrictions don’t apply to small or medium enterprises, online media addressed to consumers outside the UK, business-to-business advertising or to ads connected to radio services.

The development

From December 2023 to February 2024, CAP and BCAP ran a consultation on three aspects of the framework to be implemented:

• new guidance on the less healthy product advertising rules;
• new rules reflecting the less healthy product advertising restrictions;
• amendments to existing rules and guidance.

The latter two points are straightforward and generally relate to ensuring technical parity between the legislation and the Code applied by the ASA.

The first point is more interesting. The proposed guidance has been published along with the consultation, and offers useful insight into how businesses can manage their advertising practices in compliance with these new restrictions.

However, perhaps of most interest is the guidance on the scope of the restrictions. This sets out various factors which the ASA will consider when determining whether an ad is in breach. Factors suggesting there has been a breach include:

• text referencing a specific Less Healthy Product;
• recognisable, prominent images of a specific Less Healthy Product, either in or out of packaging;
• references to a Less Healthy Product, even amongst non-Less Healthy Products (eg in a full shopping basket);
• ads for customer experience or loyalty schemes which focus on purchasing Less Healthy Products;
• background imagery which is still prominent enough for customers to recognise a Less Healthy Product; and
• stylised representations of Less Healthy Products which are still identifiable.

There are also listed factors suggesting when an ad is not in breach:

• representations of generic products that don’t give enough information for a customer to identify a specific Less Healthy Product (eg an ad for a range of crisp flavours, or a soft drink used as a mixer with an alcoholic drink);
• representations of non-Less Healthy Products, even if they are very similar to certain Less Healthy Products;
• background imagery which isn’t clear enough to identify a specific Less Healthy Product;
• creative approaches which convey a certain Less Healthy Product without showing it (eg someone chewing, or the sound of food sizzling);
• depictions of ingredients used to create Less Healthy Products (eg chocolate being poured during a baking process, or bread being mixed);
• generic descriptors such as “burgers” or “milkshakes”;
• ads for meal combos, even if the combo features some Less Healthy Products;
• links to advertiser websites; and
• depictions of generic packaging, with no specific product identifiers.

Why is this important?

The proposed guidance is important because, although not currently in force, it offers a helpful demonstration of which ads will be in breach. This gives advertisers time to recalibrate their advertising campaigns and strategies to ensure compliance, and even (potentially) allows them to reformulate their products to avoid being caught within the meaning of Less Healthy Products.

Any practical tips?

Advertisers can use the proposed guidance as a starting point when planning out their ad campaigns, bearing in mind that any ads before 9:00pm on TV or on-demand video services will have to be compliant, as will any ads online. It’s also worth keeping an eye out for further information about the results of the consultation when published by CAP and BCAP.

Spring 2024