The UK government has announced that its ban on advertising “junk food” will be delayed until after the next election. This follows its controversial delay introducing some aspects of the rules on sales promotions relating to foods high in fat, sugar or salt.

Previously the government said that it would:

• introduce simultaneously a 9pm TV watershed for HFSS products and a restriction of paid-for HFSS advertising online;
• include all on-demand programme services (ODPS) under the jurisdiction of the UK, and therefore regulated by Ofcom, in the TV watershed for HFSS advertising;
• include non-UK regulated ODPS in the restriction of paid-for HFSS advertising online because they are outside UK jurisdiction.

The consultation response also included policy detail on:

• business and products that will be in scope of the restrictions;
• how products will be defined as HFSS;
• exemptions to the policy; and
• how the restrictions will be implemented and enforced.

The restrictions were set out in last year’s Health and Care Act 2021, which amended parts of the Communications Act 2003. However, certain elements of the policy will be taken forward in secondary legislation. Therefore, the government is seeking feedback on the draft Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2022.

In particular, the draft regulations define:

• the products in scope of the advertising restrictions - a food or drink product is defined as “less healthy” if it falls within a description specified in regulations made by the Secretary of State, and is “less healthy” in accordance with the relevant guidance;
• food and drink small and medium-sized enterprises for the SME exemptions - businesses with 249 employees or fewer that pay to advertise HFSS products will be exempt from the HFSS restrictions. The draft regulations also clarify that a company’s number of employees internationally count towards their total number of employees and that franchises are treated as part of the franchisor business and not as a separate business; and
• services connected to regulated radio under section 368Z14(3)(c) (of the Communications Act) – to ensure that the exemption for radio services (which are outside the scope of the prohibition) covers online services provided by commercial and community radio broadcasters.

The government is also asking if the secondary legislation should contain an exemption for audio-only media to cover other non-broadcast radio services that are carried online including UK-based internet radio services.

The consultation ends on 31 March 2023. The government says it will work with regulators to issue guidance for industry before the new rules come into force on 1 October 2025.

The delay to the restrictions will be welcomed by those wanting to avoid further regulatory burdens, but they have been criticised by others, who have said the delay will undermine healthy eating initiatives. 

Given all the changes and delays we have already seen to date, one wonders if these restrictions will ever see the light of day and, if so, in what form. October 2025 feels a long way away…