Earlier this year, Ofcom consulted on proposals for implementing new statutory restrictions on advertising and sponsorship for less healthy food and drink products.

The Health and Care Act 2022 amended the Communications Act 2003 to introduce new restrictions on advertising and sponsorship for certain food and drink products that are high in fat, salt or sugar (HFSS). These new restrictions apply to advertising on Ofcom-regulated TV and on-demand programme services (ODPS) and also online.

The restrictions:

• prohibit TV services from including advertising and sponsorship for less healthy food and drink products between 5.30am and 9pm;
• prohibit ODPS from including advertising and sponsorship for less healthy food and drink products between 5.30am and 9pm; and
• prohibit paid-for advertisements for less healthy food and drink products that are aimed at UK users from being placed online at any time.

These restrictions take effect from 1 October 2025.

Ofcom is the statutory regulator with responsibility for advertising on TV and ODPS. Its consultation proposed to:

• designate the Advertising Standards Authority as a co-regulator for the new prohibition on advertising for less healthy food and drink products in paid-for online space; and
• amend the Broadcast Committee of Advertising Practice Code and the Broadcasting Code to reflect the new restrictions that apply to advertising and sponsorship on TV.

Having considered the consultation responses, Ofcom has decided to: designate the ASA as a co-regulator for the online advertising prohibition; and proceed with the amendments to the BCAP Code and the Broadcasting Code, subject to minor changes.

This is unsurprising, as the ASA already regulates the area and has the necessary expertise.  Ofcom has said that BCAP will produce guidance on the new TV watershed rule and the ASA will produce guidance in relation to on-demand advertising. It says that it is likely that the BCAP guidance will cover the issue of brand advertising, which was a key concern for some respondents.

Brand advertising has always been an area of uncertainty – for both brands and regulators alike, despite plentiful guidance on the subject. Some may remember the controversy which arose from the Coco Pops Granola advertising and sponsorship credits that appeared alongside children's programming a few years ago, which resulted in conflicting rulings from the ASA and Ofcom (see our commentary here and here). 

The ASA initially upheld a ruling against the ad on the basis that it was an ad for the Coco Pops brand, which contained a number of HFSS products. Ofcom disagreed, ruling that it was an ad for the Coco Pops Granola product itself (not the wider range). Coco Pops Granola wasn’t an HFSS product. In a rare U-turn, the ASA reversed its ruling to align with Ofcom's position. It was an unfortunate situation for Kellogg’s which had launched the granola product as a move towards less unhealthy formulations. Brands are understandably keen to avoid any confusion and uncertainty with the new restrictions and will want to see consistency from regulators – we look forward to seeing the promised new guidance in due course!