The advertising rules for ‘less healthy’ food and drink are changing, are you ready?
The changing face of advertising in the UK is set to have another makeover later this year when new rules about food and drinks that are high in fat, salt or sugar (HFSS) come into effect. We explore the potential impact of the advertising rules for ‘less healthy’ food and drink on print and online media.
1 October 2025. Put it in your diaries, companies.
For many of those selling HFSS products, there has been a sense of an inevitable tightening of the screw when it comes to advertising their wares. October 2022 and its product placement restrictions resulted in a major rethink of promotional strategies for many but there are now even greater changes coming down the track and businesses need to be ready.
But what are HFSS food and drinks?
Companies have often complained that HFSS is quite a general term and so it is hard to identify whether a product falls under its definition. Recent changes now make clear that this involves a two-stage process:
- 1. Does it fall within one of the product categories identified in the Regulations? These cover, but are not limited to soft drinks with added sugar, confectionary, ready meals, puddings and dairy desserts crisps and savoury snacks and breakfast cereals. For a full list, please see the Schedule to the relevant Regulations.
- 2. Do those identified product categories score highly on the Nutrient Profiling Model (NPM)? This is a model run by the Department of Health that helps to determine the nutritional value of foods based on their ingredients. Foods scoring 4 or more points and drinks scoring 1 or more points are classified as HFSS. The Consumer Data Research Centre has developed a handy NPM online calculator to help with score calculations.
What are the changes?
Currently CAP guidelines set out a number of restrictions on HFSS advertising, in particular in relation to targeting campaigns at under-16s.
The Health and Care Act 2022 and Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 promises a regime that goes a whole lot further. While a prohibition on BOGOF offers on HFSS products is enough to make many people sit up and listen, it is the ban on paying for “identifiable” HFSS product adverts to be placed in print and online media that is most likely to cause them to stand to attention.
In order to better explain what this means, it’s perhaps helpful to explain first what the changes do not encompass:
- They do not extend to the ability to advertise on businesses’ own website and other online or other property they own, nor does it apply to audio-only content that is streamed. It also excludes business-to-business promotions or information provided at the point of sale.
- It does not cover specially exempted products, such as infant formula and baby food, meal replacement products and food for special medical purposes.
- It also does not apply to most smaller businesses, only those that manufacture or sell HFSS food or drink and have 250 or more employees. However, franchisees need to be aware that the entire franchise is treated as a single entity, so smaller businesses that operate under a franchise may not be exempt.
What’s left is a large group of larger businesses that are likely to want to continue to maximise their position in the market by paying for adverts across a range of different formats. The fact that they fall into the scope of these reforms means a potentially sizable impact on a product’s reach.
Crucially, however, the introduction of the word “identifiable” in the context of advertising HFSS products, has even further reaching consequences in terms of whether an advert could be perceived to be promoting a specific HFSS product.
Is my product HFSS “identifiable”?
The context of “identifiability” is whether an advert includes a piece of branding and/or imagery “that is likely to result in consumers identifying the advertisement as one for a specific less healthy product…without referring to it or depicting it directly”.
As a starting point, the use of the term “identify” is at risk of being seen as nebulous and subjective, binding businesses to a new regime without clarity as to whether they are, in fact, bound.
Such has been the clamour around this, the ASA recently launched a new consultation to refine what is meant by “identifiable”, which included rowing back from its previous draft guidance. In it, an ‘identifiability test’ sets out a series of considerations for companies to guide them in identifying whether their adverts come under the new rules. Central to this, is the question: could the average customer reasonably be expected to be able to identify the advert as being for a less healthy product? If they would, objectively, be expected to do so, then the new rules apply.
This test also captures how brands are seen by the general public. Is it generally associated with less healthy food and drink? If this is the case, even a pure brand awareness campaign could also be caught.
Presuming that this version of the test carries through to the roll-out later this year, it is clear that it is not just those adverts that are explicitly promoting HFSS products that will be caught by the definition. It is also, those which the general public might be expected to identify as doing so.
What does this mean for businesses?
Those businesses that are in scope face a challenge to fall on the right side of the rules before the 1 October 2025 deadline.
The first port of call is the understand whether the rules do actually apply. Are their products HFSS? Is their business large enough?
This may not be a particularly simple exercise. The borders between exemption and inclusion are, in practice, blurred and uncertain, leaving some campaigns vulnerable to challenge. In this precarious space, it remains to be seen how many companies will take a chance on proving their relief from the new rules and, in those circumstances, what measures might be necessary to protect then if they are indeed found to have infringed the rules.
This, in itself, creates a whole host of challenges; not only for the advertising company, but also for the ASA who potentially has to police this new space.
For those companies who act on the basis that the rules do apply to them, it is essential that their marketing and strategy teams are aware of these changes, if they aren’t already. Ahead of time, marketing strategies will likely have to be rethought – are there new target audiences to pitch to and new markets that may give greater freedoms to advertise? – and brand identity may also be up for consideration to help differentiate them from an association with HFSS products.
In terms of general marketing strategy and communications, it’s also important to note that the changes also affect adverts on broadcast media under the BCAP guidance, but these media channels require pre-clearance, so infringement is likely to be less of an issue.
Whatever approach businesses take, one thing is for certain; the sector will need to adapt and adapt well. And with this in mind, suddenly 1 October doesn’t feel all that far away.
If you need advice on promotion and marketing, please contact our specialist lawyers.
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