CAP (the Committee of Advertising Practice) has now released final draft guidance for implementing the new ‘less healthy food and drink’ (LHF) advertising restrictions. This comes just 1 week after the government’s publication of the secondary legislation confirming that brand ads are outside the scope of the LHF advertising restrictions.

This is the third iteration of the guidance from CAP on the LHF advertising restrictions. For background, this was necessitated because the law was unclear on the application of the rules to brand adverts, which led to the ASA issuing draft guidance in February 2025 which was much broader in scope than the government had intended in its policy decisions. The government therefore laid secondary legislation to clarify the scope of the restrictions, and to exempt ads for LHF brands.

It’s no surprise that the biggest change is the (welcome) removal of the guidance prohibiting ‘brand advertisements’ (as defined in the new legislation). The guidance instead provides information around what ads will be permitted and therefore exempt from the restrictions.

CAP’s consultation on this guidance is open for a short time only, closing on 9 October 2025. We expect CAP to issue the final guidance promptly afterwards, ahead of the restrictions gaining legal effect on 5 January 2026.

So, what’s new in the guidance?

1. Guidance on ‘brand advertising’.

An ad which is for either: (i) a food or drink brand or (ii) a brand of a range of products, will be permitted, as long as it doesn’t ‘depict’ (show / feature or otherwise represent) a ‘specific’ (e.g., a purchasable and differentiated) LHF product(s). There is detailed guidance on what types of ads might fall outside the exemption and will therefore be subject to the identifiability test (more on that below).

For example, CAP have specified that an ad which features imagery of a product where the item of packaging depicted is common to several products within a range of products is likely to benefit from the brand exemption. However, if the ad then included other information which, combined with the imagery, denotes a specific variant of the range of the products which is a specific LHF product, then the ad is unlikely to fall within the brand exemption.

The same principles employed in previous iterations of the LHF guidance apply: if the ad uses a combination of different clues or techniques which mean that the average consumer could identify that ad as being for a specific LHF product, such as a jingle, an image, text, a logo, or other branding technique, then the riskier the ad is.

2. Guidance on Brand names.

The brand exemption applies to ads for brands which name a specific LHF product where the full name of that product is either: (a) the name of (or included in the name of) a company or other commercial entity established before 16 July 2025, or (b) is the name of the brand of a range of products where the brand was in use immediately before 16 July 2025. The significance of the 16 July 2025 date is that that is when the government published its response to the consultation on the brand exemption draft legislation.

The key here is to ensure the brand exemption applies to existing brands and/or companies which share their name with the name of an LHF product.

However, any new brands and/or companies created on or after 16 July 2025 should ensure they do not share the same name as an LHF product, otherwise they will not benefit from the brand exemption.

3. Guidance on ‘realistic imagery’.

Another key change is that ads which feature a ‘realistic image’ of a food or drink item itself, not necessarily in its packaging, and that product is visually indistinguishable from a specific LHF product, will not benefit from the brand exemption.

In practice, this means that you can’t include any generated or photographic image or video, however created (including AI-generated), still or moving, within an advert that depicts or is visually indistinguishable from a specific LHF product. A brand could include a generic image of product packaging that is not specific to an LHF product, or a brand could include non-realistic images of a generic LHF product, again as long as no specific LHF product is depicted.

4. Clarity on who is responsible for compliance with the restrictions.

Advertisers are responsible for compliance with the online advertising ban whereas, with the watershed restrictions, it’s the Ofcom-regulated television broadcasters and on-demand service providers who are responsible for compliance.

5. Co-advertising with a food and drink company.

 This will be particularly relevant for sponsorship arrangements and joint advertising. If a brand which is not involved in the supply or food or drink then engages in a joint advert with a non-SME company who is involved in the supply or food or drink, then the advert is more likely to fall within the scope of the rules and be subject to the identifiability test (see more below on this). The collaboration between the two brands will influence the average consumer’s understanding of what the ad is for.

 Other important takeaways

 Some points in the guidance remain unaltered, but as a reminder:

6. Media and scope of the new restrictions.

Types of media covered by the online ad ban. CAP has added some colour on what types of media are covered by the restriction. Ads delivered on outdoor or instore display boards or screens cannot reasonably be considered to have been ‘placed on the internet’, even if they are delivered by “online or digital means”. Otherwise, the legislation does not specify the types of media covered by the restriction, but the rule is that paid-for LHF ads may not be placed ‘on the internet’ at any time.

Sponsorship. Any consideration provided (monetary or non-monetary) under a sponsorship arrangement is ‘payment’ and so, if sponsorship arrangements result in advertising that is now restricted by the LHF product rules, the guidance clarifies that these will be in scope.

In assessing whether an advertiser has paid to place the ad on the internet for an identifiable LHF product, the ASA will have regard to underlying contractual arrangements between the party paying for an ad and others involved in its preparation and publication.

Social media. Whilst the ban does not apply to ads for LHF products placed on a company’s own social media channels, if the company has ‘boosted’ or ‘promoted’ a post or ad, then the ad will be considered to be ‘paid for’ and will be in scope of the ban.

Influencer marketing. Even if an influencer is gifted an LHF product which features in advertised/promoted content, then the ASA will look at the any arrangement between the influencer and LHF product / brand to see if the ad has been ‘paid for’.

Note that ‘paid for’ always includes the exchange of non-monetary consideration or value.

7. ‘Identifiability test’.

If the ad doesn’t fall within one of the exemptions, including the brand exemption, then it’ll be subject to the identifiability test.

When assessing whether an advertisement is covered by the restrictions, the ‘identifiability test’ will be applied. The crux of this remains the same – the ASA will look at what the advert is for, and the content of the ad. The ad will be looked at from the perspective the average consumer – would the average consumer in the UK be expected to identify the ad as being for an LHF product.

8. Exemptions to the LHF restrictions.

Other than the brand exemption, there are other exemptions from the restrictions. These are:

• B2B advertising (i.e. advertising aimed only at a business, and not consumers);
• SMEs (generally speaking, a food or drink SME is a business with fewer than 250 people);
• radio or audio advertisements that are not visual advertisements;
• internet simulcast of a regulated TV service (see below for more); and
• advertising not targeted at a UK audience.

CAP has clarified that, if the ad falls within any of the exemptions, the ad will ‘straight-forwardly be outside the scope of the rules.’ But, if none of the exemptions apply, a full assessment of the ad under the identifiability test will be required to determine whether the ad is restricted.

9. Internet simulcast of a regulated TV service.

It has been acknowledged that there is a two tier system for television ads. Those Ofcom regulated services that get to comply with the watershed, and those non-regulated internet delivered services that have to comply with the online ban.

If your ad is effectively simulcast on a regulated television service (e.g., the unregulated television service corresponds to a regulated television service), then the ad will be exempt from the online ban, and will instead be subject to the applicable watershed restrictions.

Reminder of the restrictions

There are three new restrictions:

1. Linear television services, regulated by Ofcom, must not include LHF product ads between 5:30am and 9:00pm (the Watershed).
2. Ofcom-regulated on-demand programme services must not include LHF product ads during the Watershed.
3. Persons must not pay for ads for LHF products to be placed on the internet at any time.

LHF products are food or drink products which both: (i) fall within one of the 13 categories in the 2024 LHF Regulations, and (ii) are classified as ‘high in fat, sugar or salt’ under the DHSC’s Nutrient Profiling Model.

Still not sure?

Our team are very happy to answer any specific questions you might have about an ad campaign or sponsorship deal you’re looking to run – please get in touch.