In 2022, the UK Government introduced legislation amending the Communications Act 2003 to place additional restrictions on certain food and drink advertising. Ofcom is the statutory body responsible for the framework underpinning the new restrictions. Under powers conferred by the new legislation, it has appointed the Advertising Standards Authority (“ASA”) as the body responsible for frontline enforcement. The ASA has asked the bodies that author the UK Advertising Codes, the Committees of Advertising Practice (“CAP and BCAP”), to carry out a consultation on proposed changes to the Codes to reflect the new restrictions, along with a proposal for new guidance to support their implementation.

In recognition of public health concerns over children’s diet and health, there have been restrictions on the advertising of high fat, salt or sugar (“HFSS”) food and drink products since 2007. These restrictions have been mainly focused on adverts placed in or around programmes for children. The amendments to the Communications Act 2003, place further restrictions on a sub-set of HFSS products categorised in legislation as “less healthy” food and drink products. The secondary legislation which will define a “less healthy food or drink product”, the Advertising (Less Healthy Food Definitions and Exemptions) Regulations, is the subject of a Government consultation published in December 2022 the outcome of which is still awaited. Advertising for HFSS products which do not fall within the Regulations will still be subject to the existing HFSS rules in the CAP and BCAP codes.

Once the new rules come into effect from October 2025, they will prohibit advertisements for identifiable less healthy food and drink products from being:

• included in Ofcom-regulated TV services between 5:30am and 9:00pm;
• included in Ofcom-regulated on-demand programme services (“ODPS”) between 5:30am and 9:00pm; and
• placed in paid-for space in online media at any time.

The consultation seeks input on the proposed Guidance on the application of the less healthy product advertising rules (and the different tests that users must follow to determine whether a particular advertisement is within scope of the new rules) and the new rules themselves. In fact, three new rules will be added to the UK Advertising Codes for each of the three media covered: TV (BCAP Code) and ODPS and paid online media (CAP Code).

The consultation outcomes will be reviewed by the ASA before Ofcom is invited to approve the changes. The outcome is expected to be published mid-2024.

For more information and to respond to the consultation, which closes on 7 February 2024, click here