The government has published its final guidance about the advertising restrictions for less healthy food or drink (also referred to as products high in fat, salt or sugar (HFSS)) on TV and online.  It has also laid the Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 which will come into force across the UK on 1 October 2025. 

The new rules include:

  • a 9pm watershed for less healthy food or drink advertising on TV, including all on-demand programme services (ODPS) and internet protocol television (IPTV) services under the jurisdiction of the UK, and therefore regulated by Ofcom
  • a total restriction on paid-for advertising of less healthy food or drink online, including non-Ofcom regulated ODPS and IPTV.

They target businesses with 250 or more employees, including franchises and symbol groups, that pay to advertise less healthy food or drink products.

The guidance should be read in conjunction with the regulations themselves and with the implementation guidance due to come from the ASA, which will be the frontline regulator for the new rules.

The advertising restrictions will only apply to food or drink that are determined to be ‘less healthy’. There is a two stage process for defining a ‘less healthy’ food or drink product. The product needs to both:

  • fall within one of the product categories in the schedule to the regulations; and
  • score 4 or above for food, or 1 or above for drink when applying the 2004 to 2005 NPM using the 2011 technical guidance

To the extent appropriate, the government has aligned the product categories that come within the scope of the advertising restrictions with those affected by the Food (Promotion and Placement) (England) Regulations 2021. However, there are some differences to reflect that the advertising restrictions apply to products sold or served in the out of home sector as well as by retailers and manufacturers.  The guidance has thrown up some oddities, such as porridge oats coming within the scope of the guidance – it will be of interest to see how the rules are applied in practice.

Ultimately, whether an advert for a less healthy food or drink product is subject to the advertising restrictions depends on whether it is ‘identifiable’ within the advertisement itself.

Exempt products

Certain products are exempt from the advertising restrictions because they are regulated elsewhere, including:

  • Infant formula, follow-on formula, processed cereal-based food, and baby food.
  • Total diet replacement products. 
  • Meal replacement products with an approved health claim. 
  • Food for special medical purposes. 

The new advertising restrictions aim to reduce the exposure of less healthy food and drink products to children and promote healthier eating habits. Businesses involved in the manufacture or sale of these products must familiarise themselves with the regulations, the guidance, and the ASA guidance, when it comes, and ensure that they are ready to comply by 1 October 2025.  For more information, see here.

In the meantime, we would like to remind businesses that the CAP and BCAP Codes already apply to HFSS advertising, so issues such as targeting are super important.