When the Conservative government under former Prime Minister Boris Johnson introduced plans to ban ads for foods high in fat, salt, or sugar (HFSS) before 9pm on TV, and a total ban online, advertiser trade groups pushed back. The new UK laws, they argued, would deprive publishers and broadcasters of ad spend and restrict food and drink advertisers’ ability to grow their businesses, without necessarily impacting childhood obesity (though this point is of course contestable).
The law passed regardless, but advertisers could console themselves on one point. According to preliminary guidance provided by the Advertising Standards Association and informed by the Committees of Advertising Practice (CAP), any brands which sell HFSS goods would still be free to run ads on TV and online so long as they didn’t show any HFSS products within the ads themselves. So while a fast food chain, for example, wouldn’t be able to advertise a new unhealthy burger online or before the 9pm watershed on TV, they would still be able to run brand campaigns which don’t show any unhealthy products.
It turns out, however, that this might not be the case. CAP has informed the Advertising Standards Authority (the body which enforces the CAP code) that the guidance might need updating. The wording of the new laws doesn’t necessarily make room for brand campaigns, meaning certain brands which sell HFSS products might find themselves hit by very tight restrictions, and potentially subject to a blanket ban.
Brand association
The government which introduced the new law certainly didn’t intend a blanket ban. A government summary released back in 2021 explicitly listed brand advertising as an exception to the new law “provided there are no identifiable HFSS products in the adverts”, adding that “this is to ensure that brands are not pigeonholed as synonymous with HFSS products and have the freedom to reformulate and move towards offering healthier products”.
The problem, according to CAP, is that the actual wording of the law doesn’t make such provisions. “The law itself makes no reference to brand advertising,” said the ASA in a statement released on its website. “Rather, the law applies media bans to ads for an identifiable LHF [less healthy foods] product and, importantly, explains 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 [LHF] product. THIS is the test that affected advertisers and media need to consider when planning ahead for the implementation of the restrictions from October 2025. And, because no contrary indication is provided for in the Act, we understand reference to ‘that product’ also has the meaning of ‘those products’.”
CAP’s concern is that for some brands, the brand itself is so tightly linked to one or several unhealthy products that even if no HFSS foods or drinks are shown in an ad, someone watching that ad could, as per wording of the law, “reasonably be expected to be able to identify the advertisements as being for” those products.
The boundaries for which sorts of brands this would affect are unclear. An ad for Cadbury’s would fairly obviously be linked to chocolate in the mind of a consumer. An ad for Tesco, on the other end of the spectrum, is unlikely to be viewed by a consumer as an ad specifically for unhealthy items. But what about a brand like McDonalds’? A McDonald’s ad might bring to mind Big Macs and chicken nuggets, but the chain does sell lighter wraps and salads. How about Nando’s, which certainly sells HFSS products, but whose grilled chicken options and healthier sides are also popular with consumers?
The irony is that judging by the government statement quoted above, legislators specifically wanted to avoid brands being pigeonholed as synonymous with HFSS products. The wording of the law, however, specifically punishes any brands which do find themselves pigeonholed.
This wording looks unlikely to affect ads which specifically promote non-HFSS products. Thus, even if McDonald’s, for example, was ruled to be tightly associated with HFSS foods and so unable to run brand campaigns, it would still almost certainly be able to run ads which showcase non-HFSS products. It would be hard to argue that a consumer would interpret an ad for a low-calorie wrap as an ad for a Big Mac, for example.
But it would still massively hamper the ability of some brands to run campaigns on TV and online. And for companies which don’t have non-HFSS products, all online and pre-9pm TV ads would be blocked.
A “Gordian Knot”
This isn’t a closed issue, since the ASA still hasn’t finalised its guidance. But it has said it is likely to do so, clarifying that brands can’t categorically assume that brand campaigns won’t fall foul of the new restrictions.
Industry trade groups have expressed their frustration, which has been compounded by the fact that they’ve been asking for clarity on the new laws for a long while now. The issue, they say, is not with CAP, but with the way in which the laws have been formulated.
“When MPs were debating the Health and Care Bill which brought in the LHF changes in the last Parliament, we consistently argued that the exemption for brand advertising should be written into the legislation, not least to avoid problems of this kind,” said Rob Newman, director of public affairs at advertiser trade group ISBA. “Ministers at the time told Parliament that this was unnecessary, but it has proven to be essential. Brand owners sorely need urgent clarity on what they can and cannot put in their ads. For many, this is absolutely business critical. We are in close contact with the government as we try and untangle this Gordian knot and ensure that the stated policy is implemented in time for October.”
Statements from the IAB, IPA, and Advertising Association all echoed this sentiment, each stating that they had lobbied the government to include provisions for brand advertising, but had been told that such provisions weren’t necessary.