UK food advertising restrictions move a step closer with publication of consultations

The restrictions, introduced by the 2022 Health and Care Act, identify broadcast TV and online as the main sources of children’s media consumption, and prohibit advertisements, including those under a sponsorship agreement, for identifiable HFSS products on television or on demand programme services (ODPS) between 5:30am and 9:00pm. They also include an outright ban on paid-for online advertising of such products that are aimed at UK users.

Exemptions exist for business to business marketing, ads which are not intended to be accessed principally by people in the UK, and advertising by small and medium sized enterprises (SMEs). A number of exemptions also apply for regulated broadcast radio and audio-only content online, such as podcasts and internet-only radio services, where services are not regulated. However, audio advertising that has a visual component is in scope of the restrictions. 

Although the restrictions were originally intended to come into force on 1 January 2023, they were postponed until 1 October 2025 to give businesses more time to prepare. The government also acknowledged that it still needed to carry out a number of steps to finalise the reforms, including an industry consultation. The statutory regulator, Ofcom, said it also needed to carry out a separate consultation on changes to advertising and broadcasting codes of practice. Both have now been published.

The government consultation

Published in December, the government’s consultation closes on 31 March. It seeks views on the draft regulations (7 pages / 51KB PDF) that are needed to bring the restrictions into effect, and, in particular, how the regulations define in-scope products, food and drink SMEs, and services connected to regulated radio. The consultation also seeks views on whether the draft regulations should provide for an exemption for audio-only media to cover other non-broadcast radio services that are carried online, including UK-based internet radio services.

‘Less healthy’ products

According to the draft regulations, products are in scope of the restrictions and considered “less healthy” if they meet a two stage test. They first need to be included in one of the product categories set out in the regulations, and then must score a 4 or above for food – and 1 or above for drink – when applying the 2011 technical guidance to the 2004/2005 Nutrient Profile Model.

To ensure some consistency, the categories in the schedule to the draft regulations are based on the government’s sugar and calorie reformulation programmes or the soft drinks industry levy, narrowed to include only those product categories of most concern to childhood obesity. The proposed product categories in scope are intended to mirror those in the promotion and placement restrictions, with an additional category and text to cover the out-of-home sector.

Listed products include soft drinks with added sugar, savoury snacks – but not raw, roasted, coated or flavoured nuts – biscuits, breakfast cereals, ice cream, cakes, desserts and puddings, pizzas, sweetened yoghurts, ready meals and sandwiches of any kind. Further guidance is set to be issued which will be in line with the existing guidance provided for the promotion and placement restrictions.

The Health and Care Act provides an exemption for advertisements placed by, or on behalf of, a “food or drink SME”. It says a food or drink SME is a company that makes and sells food or drink and has fewer than 250 employees.

To avoid unfairness where complex multinational businesses and structures are used, the draft regulations provide that the number of employees includes those employed abroad. In addition, for a franchise model, it is the employees of the whole business which count, not of each individual franchise. Group company employees who work for the business in question must be included too.

The Ofcom consultation

Ofcom is the statutory regulator with responsibility for advertising and sponsorship on TV and ODPS and has been given additional responsibility for the new restrictions on online advertising. It has also been given the power to designate some or all of its relevant functions in this area to a co-regulator where Ofcom considers it appropriate to do so. Ofcom already has a long-standing co-regulatory relationship with the Advertising Standards Authority (ASA), the Broadcast Committee of Advertising Practice (BCAP) and the Broadcast Advertising Standards Board of Finance (BASBOF). These will be extended to include online advertising.

Published earlier this month, Ofcom’s consultation (58 pages / 618KB PDF) focuses on amendments to the UK Code of Broadcast Advertising – known as the BCAP Code – and Ofcom’s Broadcasting Code to implement the restrictions for TV and ODPS advertising and to appoint the ASA as co-regulator to enforce the restrictions online. The consultation closes on 21 April 2023.

Questions remain unanswered

While the two consultations signal a renewed commitment to implement the HFSS restrictions, concerns over the detail still remain. In particular, careful consideration will need to be given to sponsorship deals, which are included within the restrictions where they relate to specific in-scope products, to ensure that unforeseen consequences do not arise. For example, producers of HFSS products sponsoring key events may well be caught by the restrictions. Event organisers will want to ensure that this will not affect their broadcasting capabilities, and in some cases, they might have to seek an alternative sponsor to avoid falling foul of the restrictions. 

The government has been heavily criticised in recent years for its decision to postpone measures, such as restrictions on multi-buy deals, that are designed to address the high levels of obesity in the UK. The latest delays to HFSS advertising have attracted similar criticism from campaigners but have been welcomed by businesses. Nevertheless, the government will be keen to avoid any further slippage, and businesses should take note to ensure their advertising strategy is updated accordingly.