Breaking Down the UK’s Consultation on ‘Less Healthy’ Food Advertising 

The UK is currently undergoing a significant consultation on advertising ‘less healthy’ foods high in fat, salt, or sugar (HFSS). The Communications Act 2003 has been amended to include stringent regulations for the advertising of these HFSS products, especially in digital media. The rules include restrictions on advertising timings and exemptions for certain types of ads, balancing public health interests with marketing freedoms and industry challenges.

18th December 2023

Responding to rising concerns over childhood obesity and public health, the UK has amended the Communications Act 2003, introducing significant changes to the advertising of high fat, salt, or sugar (HFSS) products. These amendments, particularly targeting ‘less healthy’ products within the HFSS category, are driven by increasing concerns about childhood obesity and public health. A key aspect of these new regulations is their expansion to encompass online advertising, acknowledging the ever-growing influence of digital media on food and drink promotions. What’s currently at the forefront, however, is the public consultation phase of this process. This consultation is now open, providing a platform for everyone, from everyday consumers to industry experts, to voice their opinions and contribute to shaping the final outcome of these regulations. You can access the consultation document and share your insights through this link: Consultation on ‘Less Healthy’ Food Ads. For readers seeking more of a foundational understanding of the legislation, click here for an in-depth interview with ASA representative Andrew Taylor. 

Timeline and Evolution of the Consultation Process 

The journey towards these updated regulations was marked by key stages, each contributing to the final shape of the guidance: 

Defining HFSS Products and the Applicable Codes 

Under these new regulations, HFSS products are items that score high on the Department of Health’s nutrient profiling model. This model involves scoring foods based on their nutritional content, with ‘less healthy’ products being those that score higher due to negative nutritional aspects like fat, salt, or sugar, and a lack of beneficial nutrients. Specifically, ‘less healthy’ foods score 4 or more points, and drinks score 1 or more points. Under the new regulations, the advertising of products that break these thresholds is now more stringently regulated under both the Committee of Advertising Practice (CAP) Code and the Broadcast Committee of Advertising Practice (BCAP) Code to mitigate their visibility and appeal, especially to vulnerable groups such as children.

“HFSS products are identified through nutrient profiling, which involves apportioning positive and negative scores to different nutritional aspects of a 100g reference amount of a product. HFSS products are those foods scoring 4 or more points, and drinks scoring 1 or more points.” 

CAP and BCAP Consultation Annex A

Exemptions and the Challenge of Differentiation 

The new rules provide exemptions for brand advertising and advertisements by SMEs with fewer than 250 employees. Whilst this point is unmistakable, the exemption for brand advertising in the new HFSS regulations presents a nuanced and complex aspect of the updated guidelines. This exemption applies to advertisements that concentrate on promoting the overall image or ethos of a brand, rather than directly marketing a specific HFSS product. This type of advertising is seen as less likely to directly influence consumer choices regarding specific unhealthy food or drink items, hence its exemption from the stringent restrictions. Another key exemption is for owned media, such as a brand’s website, ensuring that brands can discuss their products in their own online spaces. 

Specific Restrictions and Enforcement Mechanisms 

The regulations impose specific time-based restrictions, particularly for identifiable ‘less healthy’ HFSS products. This includes a ban on these advertisements in Ofcom-licensed TV services and On-Demand Programme Services (ODPS) between the hours of 5:30am and 9:00pm. Additionally, these restrictions extend to paid online media, where HFSS advertisements are completely barred. The enforcement of these rules is a joint responsibility. The Advertising Standards Authority and Ofcom are tasked with overseeing these regulations, ensuring compliance, and taking necessary actions against violations. 

Case-by-Case Assessment and Advertiser Caution 

In the realm of HFSS advertising, the ASA adopts a case-by-case approach to assess compliance. Advertisers are advised to exercise caution and not to rely solely on the scenarios outlined in the guidance. The ASA’s assessment will consider a range of factors, including context, audience, product characteristics, and the overall message of the advertisement. This approach necessitates that advertisers remain vigilant and proactive in interpreting the guidelines. They must be aware that even subtle implications or indirect promotions of HFSS products could potentially fall under scrutiny.  

Implications for Promotional Marketing and Industry Feedback 

The introduction of these new advertising regulations for ‘less healthy’ HFSS products has sparked various challenges and controversies. From the advertising industry’s perspective, there are concerns about the impact on marketing strategies and revenue. The industry argues that these regulations might limit creative freedom and the ability to engage consumers effectively. On the other hand, public health advocates, while largely supportive of the move to restrict advertising of ‘less healthy’ products, have raised concerns about potential loopholes. For instance, the definitions of ‘less healthy’ and their application in marketing could be subject to interpretation, leading to inconsistencies in enforcement. Overall, there is a shift towards healthier lifestyles and responsible marketing, requiring brands to rethink their promotional tactics and adapt.

“The lack of a mention for the other exemptions which Ministers have set out causes uncertainty. When they set out their policy, Ministers were clear that there are also exemptions for business-to-business advertising, services connected to regulated radio, transactional content, and channels such as websites and social media which are owned by the brand. These exemptions have been officially mentioned nowhere in the legislation”.

Coca-Cola GB

As these regulations move forward, key dates to watch include the closure of the consultation on February 7, 2024, and the expected implementation of the regulations in 2025. These dates mark significant milestones in the process, with the former indicating the end of the feedback period and the latter signalling when the regulations will come into full effect.