The UK government has issued an update about plans to implement restrictions on advertising less healthy products on TV and online. It confirms that the new rules will come into force on 1 October 2025. The rules include: 

  • introducing a 9pm watershed for less healthy food and drink advertising on TV, including all on-demand programme services (ODPS) under UK jurisdiction, and therefore regulated by Ofcom.
  • introducing a restriction on paid-for less healthy food and drink advertising online, including non-Ofcom regulated ODPS, at all times.

The new government says that “while these measures have been subject to repeated delays in the past, this government will implement them without further delay”. (More on that later.)

Food and drink in scope

The government has clarified that the general prohibitions only apply to advertisements for an identifiable less healthy product, and not for brand advertising. The government will provide further guidance to explain the product categories outlined in the regulations, which it anticipates will largely be in line with the guidance on the Food (Promotion and Placement) (England) Regulations 2021. This guidance will accompany guidance from the ASA. It will also confirm that the requirements apply to both retail and out-of-home food and drink products.

The government has also clarified that the 2004-2005 Nutrient Profiling Model will be used to assess if a food or drink comes within scope of the ban.

The government also clarifies that the following products will not be caught by the advertising restrictions because they are already covered by other regulatory regimes: 

  • infant formula, baby food, follow-on formula, and processed-cereal based foods for infants;
  • total diet replacements for weight control products;
  • meal replacement products with an approved health claim;
  • food supplements; and
  • drinks used for medicinal purposes.

Businesses in scope

The regulations will also define the businesses in scope, especially with regard to the exemption for SMEs, which will be based on headcount and not turnover or main aim of the business (so, for example, cinemas will be caught by the regulations).  The headcount covers employees of the business itself, and staff of an associated company of the business as defined in the Companies Act 2006, who also work for the purposes of the business. This applies regardless of where the business, or its associated companies, operate. The government also intends that the restrictions may apply to franchises and arrangements where multiple businesses often operate under the same name or banner (such as symbol groups).

“Food and drink SMEs” are exempt from the ban. For that exemption to apply, it is the person who arranges for the advertisement to be shown on TV or ODPS, or the person who pays for the advertisement to be placed on the internet, who needs to be a food or drink SME for the purposes of the exemption. Retailers will be liable for their advertisements, even if they are advertising products from food or drink SMEs. 

Services in scope

Online streams of Ofcom-regulated commercial and community radio stations are exempt from the online restrictions, provided there are no visual accompaniments to the sound. Visual advertisements included in a service connected to regulated radio services, which distributes an audio item, will not be treated as part of that service – as such, if visual accompaniments to in-store radio fall within the definition of a ‘visual advertisement’, they will be in scope of the restrictions. 

Advertisements for less healthy food or drink on audio-only or audio-led platforms, such as podcast platforms or music-only streaming services are exempt. ASA guidance will provide more information on whether a product is ‘identifiable’. 

The government is also consulting on introducing an exemption, for Ofcom-regulated IPTV services, through secondary legislation, as IPTV services were not specifically addressed in primary legislation. The consultation ends on 10 October 2024.

The government has also clarified that the ban only applies to paid-for advertising and not transactional information. Again, ASA guidance will clarify the meaning of “paid-for” advertising.

What comes next?

We await guidance from the government and from the ASA.

The government has also committed to banning the sale of high-caffeine energy drinks to under-16s.

In addition, the government will review and evaluate the policy five years post implementation.

A quick recap on the delays to date

As a final point, it is worth a quick recap on the government’s reference to the previous delays on HFSS restrictions. 

The prospect of new restrictions on HFSS food was introduced by Boris Johnson in 2020, following his well-publicised hospitalisation due to Covid, which he blamed partially on his weight. As a result, he launched a £10 million campaign to tackle the obesity crisis.

However, his successor, Liz Truss – despite managing only 49 days in office – still managed to squeeze in her own take on HFSS food (albeit on the related volume and placement restrictions), saying that she wasn’t “interested in how many two-for-one offers you buy at the supermarket”. 

Then it was Rishi Sunak’s turn, explaining: “I firmly believe in people’s right to choose – and at a time when household budgets are under continuing pressure from the global rise in food prices, it is not fair for government to restrict the options available to consumers on their weekly shop”.

So there have indeed been many U-turns and delays on HFSS restrictions over last few years, and it remains to be seen where we end up. However, for now, at least, it looks more likely than ever that the advertising ban is going to happen.