HFSS products face wave of new advertising legislation to combat obesity

Just how broad are the scope of the new incoming HFSS regulations? What should brands and retailers be thinking about now to be ready?

The key takeaway

All those engaged in HFSS products need to start preparing for a wave of aggressive new legislation which will impact in-store sales, as well as TV and online advertising. The most impactful of the regulations on brands are likely to be the pre 9pm TV and on demand watershed, as well as a total ban on paid-for advertising online (subject to certain exemptions). 

The background

Producers of HFSS products and retailers are facing the largest overhaul of the industry in recent years with two new pieces of legislation due to have a significant impact on the food and retail industry, particularly with regards to consumer engagement. The new regulations form part of the government’s wider strategy to tackle obesity, published in July 2020. They also complement other proposed measures, including a ban on paid-for online advertising of HFSS products, within the Health and Care Bill which is currently making its way through Parliament.

The development

New rules governing the placement and promotion of HFFS foods will come into force in the UK in October 2022. The Food (Promotion and Placement) (England) Regulations 2021 (the Regulations) were originally supposed to come into force in April 2022. This date was pushed back to allow retailers to make the necessary adjustments and prepare. 

The Regulations introduce four new restrictions. These apply to businesses with over 50 employees which sell (whether in-store or online) pre-packaged HFSS products to consumers, or which offer free sugar sweetened drink refills to consumers in-store. Certain types of businesses are exempt, such as schools and care homes. Other businesses are exempt from certain of the restrictions; for example, the restrictions on price and placement do not apply to restaurants (including cafes and takeaways), and the in-store placement restriction does not apply to stores with a floor area below 185.8 square metres. The restrictions prohibit in-scope businesses from:

• offering HFSS products as part of a volume price promotion (for example, “buy one get one free” or “3 for 2”) either in-store or online
• placing HFSS foods in prominent locations in-store, including at store entrances, aisle ends and checkouts
• promoting HFSS foods in certain locations online, including on home pages, while a consumer is searching products other than HFSS foods, on a pop-up page or on shopping basket/payment pages, and
• offering free in-store refills of certain non-pre-packaged sugar-sweetened drinks.

Local authorities will enforce the restrictions; non-compliance with an improvement notice may result in a fixed penalty of £2,500. It will be the responsibility of retailers to ensure that these regulations are adhered to and as such they will not affect producers of HFSS products directly. 

The Health and Care Bill (the Bill) was introduced to Parliament on 6 July 2021. The Bill will introduce restrictions on the advertising of high fat, salt and sugar (HFSS) products in the UK, including a ban on advertising HFSS foods on TV before 21:00 and an outright ban on paid-for online advertising of HFSS foods. On-demand programme services (ODPS) will also be in scope. The bill outlines the following steps to combat obesity:

• introducing a 05:30 to 21:00 watershed for TV advertising of HFSS products. All On Demand Programme Services (ODPS) under the jurisdiction of the UK, and therefore regulated by Ofcom, will be included in the TV watershed
• banning paid-for advertising online of HFSS products. Other ODPS outside of the jurisdiction of the UK will be subject to the online prohibition because they are not defined in the Communications Act 2003 (the Act), so are considered to be “internet services”, and
• amending the Act to enable Ofcom to introduce the advertising restrictions on broadcast TV, and on ODPS that it regulates being subject to Part 4A of the Act and introducing the prohibition of paid-for HFSS advertising online by inserting a new section into the Act after Part 4B.

These restrictions will not apply to “owned media” which is defined as online property owned by a brand and over which the brand exerts full editorial control and ownership over content, such as a blog, website or social media channel (although this does not include paid for content through influencers). 

TV advertising 

Under the current language of the Bill, Ofcom is obliged to set standards that prohibit television programming between 05:30 and 21:00 from including advertisements for a “less healthy” product. Less healthy in this context includes products caught under the guidance detailed at 1.4 above. Additionally, on-demand programme services must not include ads for “less healthy” products between 5.30am and 9.00pm. The above restrictions must be in force by 1 January 2023. 

Online advertising 

Under the current language of the Bill, a person may not pay for ads for a less healthy food or drink product to be placed on the internet. It is important to note that payment here includes any consideration (monetary or otherwise). The government’s response to the consultation also notes that the restrictions on online advertising implemented by the Bill will apply to paid for adverts placed in online marketing communications which includes commercial emails, commercial text messaging and other messaging services as well as several other online advertising mediums. 

The government plans a number of exemptions from the new restrictions imposed by the Bill:

• brand advertising provided there are no identifiable HFSS products in the ads. This is to ensure brands are not branded as synonymous with HFSS products and have the freedom to move to healthier offerings
• small and medium enterprises
• audio content only available online (podcasts, online radio)
• broadcast radio
• online business to business promotions or advertising, and
• online transactional content.

Why is this important?

The new legislation will have a significant impact on both the producers of HFSS products and advertising platforms alike. The ability of companies to reach their target audience/demographic will be limited with companies needing to look at alternative methods of advertising - perhaps meaning an increased focus on owned media, in particular leveraging social channels. 

Any practical tips?

Retailers that have instore offerings caught by the Regulations should engage thoroughly with them before they come into force in October, in order to ensure that store positioning is compliant under the new rules. 

The Bill will severely restrict businesses to advertise in two critical mediums (TV and online). A shift in marketing strategy may be required to utilise business owned media, which is exempt, coupled with an emphasis on promotion via a brand’s own social channels.