The Health and Social Care Bill has been introduced to the House of Commons and will now proceed to committee stage for closer scrutiny by a small group of MPs. The committee of MPs is expected to report to the House by 2 November 2021. The Bill is of interest to advertising lawyers due to its controversial provisions on new advertising restrictions for products high in fat, sugar and salt (defined as “less healthy” foods in the Bill).
As it stands, the Bill will introduce a 9pm watershed for advertising of less healthy food or drink on TV, and a restriction on paid-for advertising of less healthy food or drink online, simultaneously, at the end of 2022. All on-demand programme services (ODPS) under the jurisdiction of the UK, and therefore regulated by Ofcom, will be included in the TV watershed. Other ODPS will be subject to the online restriction because they are not regulated by Ofcom.
The restrictions will only apply to the advertising of "identifiable less healthy food and drink" products that are of most concern to childhood obesity. A two-stage approach will be used to decide what products fall within scope: the product will need to fall into the revised list of categories that are of most concern to childhood obesity taken from the Public Health England Calorie and Sugar reformulation programme and Soft Drinks Industry Levy; and it will need to fall within the Nutrient Profiling Model. Examples of those items in scope include ready meals, cakes, pizza and confectionery.
The key restrictions are:
The TV watershed: between 5:30am and 9:00pm the advertising of less healthy food and drink will be prohibited on TV. Broadcasters will be liable for any breaches.
The treatment of ODPS: all ODPS under the jurisdiction of the UK, and therefore regulated by Ofcom, will be included in the TV watershed. Other ODPS will be subject to the online restriction because they are not regulated by Ofcom. As mentioned, UK OPDS service providers will be liable for any breaches. For other ODPS it will be the advertiser who is liable.
The online paid-for advertising restriction: the online prohibition of advertising less healthy food and drink products will only apply to paid-for advertising. (Advertising is considered "paid for" if the payment is in the form of money or there is some other non-monetary benefit, such as where a brand gives its products to an influencer in return for a review.)
Brands and advertisers will be glad that there are some exclusions, which are:
Brand advertising (online and 9pm watershed): provided the advertising does not include any identifiable less healthy food and drink products, food and drink brand ads can continue.
Small and medium sized enterprises (SMEs) (online and 9pm watershed): there will be an exemption for SMEs with 249 employees or fewer.
Business to business (online only): businesses can continue to promote their products or services to other businesses.
Transactional content (online only): online content for the purpose of facilitating transactions involved in buying and selling products will be allowed to continue.
Audio (online only): secondary legislation will create an exemption for services such as online radio and podcasts.
Payments made by a person who does not carry on business in the UK (online only): payments for advertisements for less healthy food and drink products will be exempt if they are made by a person who does not carry on business in the UK, provided that the advertisements in question are not intended to be accessed principally by a UK audience.
Broadcast radio is not within the scope of the Bill: audio advertisements on the online streams of regulated radio services, such as LBC or Heart FM, will be exempted from the prohibition, provided there are no visual accompaniments to the sound.
Broadcasters and ODPS under UK jurisdiction will be liable for breaches of the TV watershed. For non-UK ODPS and paid-for advertising online, those paying for advertising will be liable for breaches.
Ofcom will enforce the new rules. However, the government proposes that the ASA continues to use informal powers (for example, reputational sanction, such as naming and shaming) and takedown requests in the first instance. For serious breaches or where these sanctions have had no effect, the frontline regulator should be able to refer broadcasters or advertisers to Ofcom. Ofcom will have the power to issue fines of up to £250,000.
It may still be possible to change aspects of the Bill as the committee can take evidence from outside parties and may suggest consequential amendments. However, the restrictions are very likely to be passed in some form and HFSS producers and advertisers should start planning for the new world now...
The pandemic has shown the impact of inequalities on public health outcomes and the need for government to act