Ban on advertising junk food before 9pm resurrected in the UK

The restrictions will prohibit advertisements for identifiable high fat, salt or sugar (HFSS) products on television or on-demand programme services (ODPS) between 5:30am and 9pm. They also include an outright ban on paid-for online advertising of such products that are aimed at UK users. Ofcom-regulated ODPS will be included in the 9pm watershed prohibition whereas non-UK regulated ODPS will be included in the restriction on paid-for HFSS advertising. 

Originally introduced by the Health and Care Act 2022 under the previous government, the new restrictions were set to come into force from 1 January 2023. However, their implementation was subsequently delayed to 1 October 2025.

The Labour government has now resurrected the rules as part of its pledges during the general election to tackle UK’s health crisis and ban the advertising of junk food to children. Building on a 2022 consultation carried out by the previous government, which sought views on their draft regulations (7 pages/51KB PDF) implementing the ban, the current government has now published its response to that consultation. The response confirms that no substantive changes to the draft regulations published with the 2022 consultation are needed. 

Zoe Betts, health and safety and food law expert at Pinsent Masons, said that whilst the government is clearly intent on implementing the advertising restrictions set out in the Health and Care Act, important detail is still lacking. 

“Stakeholders have consistently said additional clarity is required if they are to prepare properly for the 1 October 2025 implementation date set down some time ago. The 2022 consultation and draft regulations were intended to provide that clarity but concerns remain. The government’s view that little by way of amendment to those regulations is required and that instead additional guidance, which is still to be published, will fill any gaps, will do little to ease those concerns, with the deadline looming less than one year away,” she said.

Under the Health and Care Act, only advertisements for products determined to be “less healthy” are intended to be within scope of the restrictions. The government has confirmed that products will be deemed to fall within this term if they meet a two-stage test. They must be included in one of the product categories set out in the regulations, and then must score a 4 or above for food – and 1 or above for drink – when applying the 2011 technical guidance to the 2004/2005 Nutrient Profile Model. All categories apply to both retail and out-of-home food and drink products. 

Whilst the government is satisfied this test “accurately and clearly determines how a business can determine if a food or drink product is in scope”, further guidance to explain product categories will be provided, including examples of what food and drink fall within scope of specific categories. Certain products already subject to a separate regulatory regime, including infant formula, baby food and food supplements, will not be in scope.

The government’s response explained that product categories are based on the government’s sugar and calorie reformulation programmes or the soft drinks industry levy, and have been narrowed to include only those product categories of most concern to childhood obesity. They are intended to largely mirror those in the promotion and placement restrictions, with an additional category and text to cover the out-of-home sector.

The government has also made it clear that brand advertising is outside of the restrictions’ scope.

Another key point the 2022 consultation focused on was an exemption under the Health and Care Act for advertisements placed by, or on behalf of, a “food or drink SME”. The Health and Care Act defines a “food or drink SME” as a company that makes and sells food or drink and has fewer than 250 employees. This definition is aligned with the meaning of those businesses that are not “qualifying businesses” in the Calorie Labelling (Out of Home Sector) (England) Regulations 2021. 

The government has confirmed that turnover is not considered as part of the “food or drink SME” definition.  However, to avoid unfairness where complex multinational businesses and structures are used, the draft regulations provide that the number of employees includes those employed abroad. In addition, for a franchise model, it is the employees of the whole business which count, not of each individual franchise. Group company employees who work for the business in question must be included too.

The Health and Care Act also provides exemptions for regulated broadcast radio and audio-only content online, such as podcasts and internet-only radio services which are not regulated. However, audio advertising that has a visual component falls within the restrictions. The government is to provide guidance and examples of audio-only content. 

At the same time as issuing the response to the 2022 consultation, the government has launched a further targeted consultation, seeking views on how the restrictions will apply to Ofcom-regulated internet protocol television services which deliver television live over the internet. The consultation on the exemption of such services will close shortly, on 10 October.