At the start of this year, new laws came into force in the UK setting restrictions on ads from ‘less healthy food and drink’ (LHF) products, as part of an anti-obesity push from successive UK governments. Under these new rules, brands aren’t allowed to run ads for LHF products online at any time, and can only run them on TV after a 9pm watershed. The only exception, put in place partly as a result of pushback from the ad industry, is for brand ads which don’t feature a specific LHF product.
Within these rules, however, there have been grey areas and uncertainties. If a brand’s mascot is an anthropomorphised version of an LHF product, would they be covered by the rules? If an unhealthy snack is shown in a scene-setting shot, would that be a problem? Would there really be any meaningful way for advertisers traditionally associated with junk food — fast food chains and confectionery makers — to run ads in the UK?
Now, over halfway through the year, the UK’s Advertising Standards Authority has started issuing decisions on some of the complaints it’s received. In the details of these various judgements, we’ve gotten a bit more clarity. Here’s what we’ve learned so far:
The definition of ‘brand advertising’ may surprise you…
The brand advertising exemption included by the UK government provides some much-needed wriggle room to advertisers. They’re allowed to run ads which cover a range of products, rather than specific unhealthy items. The test is whether someone watching the ad could reasonably see it as an ad for one or several specific LHF products.
This calls to mind Cadbury’s classic gorilla spot, or the McDonald’s ‘Raise Your Arches’ campaign from a few years back – ads which are all about the core brand, rather than the products themselves. Under a strict definition of brand advertising, these could have been the only types of ads allowable for these brands under the new rules.
But the ASA’s rulings show that their definition of brand advertising is a bit wider. For example, a Domino’s YouTube ad showing three sliced pizzas (more on that below) with the text “PIZZA FROM £10” and a “Visit advertiser” click-through was classed as a brand ad under the ASA’s judgement. So, too, was a KFC TV spot advertising its Double Deal, which included slogans “The Double Deal for £5.99” and “GET THE DEAL. BELIEVE IN CHICKEN”.
It’s also worth noting that the rules aren’t absolutely strict on LHF items appearing in campaigns. In an influencer ad for Lidl reported to the ASA, almond croissants were visible in one of the shots. But since their appearance was brief, they weren’t centred in the frame, and they weren’t mentioned, the ASA said the video wouldn’t be seen as an ad for almond croissants. Similarly, a campaign for travel brand On The Beach showed a young boy taking a chocolate ring doughnut from an airport lounge bar: the ad was clearly for travel services, rather than doughnuts, so it was cleared by the ASA.
… as may the definition of ‘less-healthy food and drink’
As the LHF laws were being formulated, there was some vocal criticism of the range of items which fall under the “less healthy” definition. For example, crumpets and porridge are named under two of the 13 specific food and drink categories which are covered by the regulations, a fact which raised some eyebrows.
But a product is only banned if it sits within one of these categories and is also judged to be high in fat, salt, and sugar (HFSS) under the government’s definitions. So even products which might traditionally be seen as junk foods can be exempt so long as their nutritional profiles don’t violate the HFSS standards. That, after all, was one of the aims of the law — that brands might reformulate some of their products so as to stay within the rules.
A glance at some of the food items which manage to pass under this bar may surprise you. Specific vegetarian pizzas from Domino’s and Papa Johns, KFC’s fillet burger, and even Burger King’s Whopper are all classed as non-LHF products.
It’s good to be distinct…
All of those burgers and pizzas were shown in ads flagged to the ASA, and all of them were cleared by the regulator. The key question was whether they could be confused for any LHF product. If it’s reasonable to believe a consumer might see an ad for Domino’s Veggie Supreme but mistake it for a different LHF pizza, for example, then that would be an issue.
The takeaway is that if you’ve got an item which you’re allowed to show under the rules, you should make sure it’s visually distinct from all of your LHF products.
The bar here doesn’t appear to be particularly high. It’s not simply the case that if an ad shows a burger, for example, it could be misidentified as any other burger offered by the same company. Rather, the ASA considers all the visual elements. In its various decisions, the regulator considered the toppings shown on a pizza, the colour and thickness of a pizza crust, the presence of sesame seeds and scoring on top of a burger bun, and the visible ingredients included in a burger. The Veggie Supreme, Papa Johns’ Garden Party pizza, and Burger King’s Whopper were all judged to be distinctive enough that they wouldn’t be confused with any other items on their respective brands’ menus.
In KFC’s case, both the ASA and KFC itself agreed that the fillet burger does look very similar to a different item: the Zinger burger. But the Zinger burger is also not classed as an LHF product, so this wasn’t an issue.
There are interesting implications here for products where visual distinctiveness is tricky. Take soft drinks, for example. Pepsi Max doesn’t count as an LHF product, while regular Pepsi does. So does that mean that Pepsi Max can’t be shown in an ad without breaking the rules?
As it happens, no! KFC’s ad also included shots of Pepsi Max, but was cleared by the ASA. The reason for this was that KFC only sells Pepsi Max, Pepsi Max Cherry, and Diet Pepsi, none of which are LHF products. So the fact that KFC doesn’t include regular Pepsi on its menu means it’s allowed to show Pepsi Max in its ad.
Presumably the implication is that PepsiCo itself wouldn’t be allowed to advertise Pepsi Max (unless it was clearly labelled as such), for risk of it being confused with regular Pepsi. Distributors which don’t sell the whole range, however, are in the clear.
… but for mascots, distinctiveness can be an issue
This rule of distinctiveness seems to be flipped on its head, however, when it comes to brand mascots.
The ruling which has perhaps received the most attention so far was last week’s decision against Mars Wrigley, which banned the yellow oval M&M’s character — but not its round compatriots — from M&M’s ads.
The big issue for the yellow oval M&M (who goes by ‘Yellow’, according to the M&M’s fandom wiki) is his shape. Mars Wrigley sells a number of round M&M’s variants: chocolate, crispy, cookie dough, salted caramel, and chocolate minis. The round M&M’s mascots, therefore, aren’t related to any one of these specific products, so the ASA says they aren’t a depiction of an LHF product.
But there’s only one oval variety of M&M’s: peanut M&M’s. This, in the eyes of the ASA, means that the yellow oval character does portray an LHF product. (The character’s yellow colour may have been a factor here too, since Peanut M&M’s are sold in yellow packaging, making the relation stronger. No other oval M&M’s were included in the offending ad, so there’s no official ruling on whether they also portray LHF products. However, the ASA’s judgement stated “because of their distinct shape, the oval M&M’s characters, including the yellow one featured in the ad, depicted Peanut M&M’s”, which suggests other colours would also fall foul of the rules.)
This is a tough ruling to extrapolate from, and big questions remain for our beloved anthropomorphic LHF mascots. Does the existence of pizza flavoured Cheestrings, which look just like regular Cheestrings, hand Mr. Strings a lifeline? Are the slight variations in colour between Peperami varieties a death sentence for Animal? And where do we even begin with Bertie Bassett?
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