OFCOM consultation on advertising “less healthy” food and drink products

How are new restrictions on the advertising of less healthy food and drink products under the Health and Care Act 2022 (HCA 2022) likely to be implemented?

The question

How are new restrictions on the advertising of less healthy food and drink products under the Health and Care Act 2022 (HCA 2022) likely to be implemented?

The key takeaway

Although the position will be confirmed in OFCOM’s response to its consultation, OFCOM’s current approach suggests that the ASA will be designated as the primary regulator for the new advertising restrictions and that the restrictions will not replace existing restrictions on the advertising of HFSS products.

The background

In 2018 the UK Government set a target to halve childhood obesity by 2030. As part of measures to achieve this aim, the Government developed restrictions on the advertising of products that are high in fat, salt or sugar (HFSS). In June 2021, following a consultation period, it published a formal consultation response on policy, and proposed a series of restrictions. These included a 9pm watershed for the advertising of HFSS products on TV and on-demand programme services (ODPS) between 5.30am and 9pm, as well as a complete prohibition on paid-for online advertising of HFSS products (as set out in further detail in our blog here), restrictions on the placement of HFSS products in stores at aisle ends, store entrances, near checkouts, and at queuing areas, and restrictions on the volume price promotion of HFSS products.

Whilst the placement restrictions came into force in October 2022, in the face of the growing cost of living crisis, the volume price promotion restrictions were subject to a last-minute delay by the Government and are now set to come into force in October 2023.

The Government also delayed the introduction of the watershed for the advertising of HFSS products on TV and ODPS, as well as the prohibition on paid-for online advertising of HFSS products from January 2023 to October 2025. In the meantime, the Government’s consultation seeking views on draft secondary regulations (the Advertising (Less Healthy Food Definitions and Exemptions) Regulations) on products within the scope of the advertising restrictions (and the extent of exemptions for small and medium-sized enterprises (SMEs)) closed on 31 March 2023. Separately, Ofcom launched its own consultation on 21 February 2023 to seek stakeholder views on its proposed approach to implementing the new advertising restrictions, which closed on 21 April 2023 (the OFCOM Consultation).

The development

Here are some of the key points to note:

• whilst OFCOM is the statutory regulator with overarching responsibility for TV and ODPS advertising, its existing co-regulatory relationship with the Advertising Standards Agency (ASA), Broadcast Committee of Advertising Practice (BCAP) and Broadcast Standards Board of Finance (BASBOF) should continue in respect of the regulation of the new restrictions on TV and ODPS advertising. Further, the ASA is likely to be designated by OFCOM as the primary regulator for online advertising. This suggests that the ASA’s usual sanctions will be used to achieve compliance in relation to online, TV and ODPS advertising where necessary and if compliance is not achieved, OFCOM’s powers will be utilised. In OFCOM’s view this process of regulation will create consistency for consumers and advertisers alike
• the new advertising restrictions will not replace existing rules on the advertising of HFSS products, for example, rules on the targeting of children (ie those under the age of 16) and scheduling. Instead, the new restrictions will sit alongside existing restrictions and only apply to “less healthy” food and drink ie those which are both: (i) classified as HFSS according to the Department of Health and Social Care’s Nutrient Profiling Model, and (ii) fall within the specified categories of food and drinks products detailed in the Food (Promotion and Placement) (England) Regulations 2021 – the existing rules only apply to the former. Further, any exemptions in respect of the new advertising restrictions, such as the proposed exemption for SMEs, will not automatically apply to existing HFSS advertising restrictions, and
• OFCOM is proposing a number of changes to the BCAP Code (for TV adverts), the Broadcasting Code (for TV sponsorship adverts) and the CAP Code (for ODPS advertising) to reflect the new restrictions. Amendments include an appropriate definition for HFSS products and to ensure that the advertising restrictions in the Broadcasting Code also cover the sponsorship of less healthy food and drinks between 05:30 and 21:00.

Why is this important?

Once the Government publishes its responses to both the Government and OFCOM consultations, we expect to see more clarity for brands about the boundaries and scope of the new advertising restrictions. However, as matters stand, the proposed advertising restrictions will apply to most brands selling HFSS products and are therefore likely to impact a wide range of brand owners.

Any practical tips?

Although the delays to HFSS advertising restrictions have not been well received by those who are in the healthcare sector or otherwise at the sharp end of the health implications of rising rates of obesity, businesses should make use of this period of delay to assess their marketing of HFSS products, and the steps required to comply with the proposed restrictions. They should also consider whether there may be value in developing alternative non-HFSS product lines in order to bypass the proposed restrictions.

Although the most recent consultations do not appear to address the issue, brands should bear in mind that the advertising restrictions will bite on influencer marketing, to the extent the relevant content represents “paid-for” advertising (ie where an influencer posts content about HFSS products having received payment or another kind of benefit from the advertiser).

Summer 2023