Guidance provides some clarity to ‘less healthy’ food advertising ban

“However, concerns will remain, in particular implementation and enforcement guidance to be issued by the Advertising Standards Authority (ASA), as the frontline regulator, is still awaited,” said Zoe Betts, health and safety and food law expert at Pinsent Masons.

The regulations define the products, businesses and services in scope of the advertising restrictions for less healthy food or drink on TV and online.  

Under the Health and Care Act 2022, the restrictions were originally set to come into force on 1 January 2023. However, implementation of the ban was subsequently delayed to 1 October 2025.

Betts said: “Businesses still have a mountain to climb if they are to be ready for the 1 October implementation date of the advertising restrictions. Considerable additional work will be required to ensure products are properly identified and scored, at a time when pressures on businesses and resourcing are already stretched to the limit.”

The regulations (10 pages / 302 KB) were originally published in draft for consultation by the previous government. Earlier this year the Labour government confirmed that no substantive changes would be made to that draft, which has now been laid before parliament. However, stakeholders have persistently called for additional clarity, particularly around those products in scope of the regulations. Whilst confirming it was satisfied with the two-stage test set out in the regulations, the government confirmed that further guidance to explain product categories would be provided, including examples of what food and drink fall within scope of specific categories. 

Under the 2022 Act, only advertisements for products determined to be “less healthy” are intended to be within scope of the restrictions. 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 four or above for food – and one or above for drink – when applying the 2011 technical guidance to the 2004/2005 Nutrient Profile Model (NPM).

The guidance confirms that the product categories in scope of the advertising restrictions have been largely aligned with those in the promotion and placement regulations. However, there are some differences to reflect the fact that the advertising restrictions apply to products sold or served in the out of home sector – for instance, restaurants, cafes and takeaways - as well as by retailers and manufacturers. 

The guidance gives some examples of products which will be considered in scope of the product categories listed in the schedule to the regulations. Fermented yoghurts and drinks, kombucha, flavoured yoghurts and protein powders will all be included where they contain added sugar, as will chickpea or lentil-based crisps, seaweed-based snacks, granola, muesli, porridge and ready to eat cereals, sweet coated nuts - but not raw, coated, roasted or flavoured nuts and seeds – and confectionary. Whilst pizza, except plain pizza bases, is included, garlic bread, cheese garlic bread and “loaded” varieties of garlic bread are specifically excluded.

Betts said: “Whilst some of the products included in the schedule may raise some eyebrows, it is important to remember that to be in scope of the restrictions, a two-stage test must be met.  To be applicable the product must not only fall within those listed in the schedule, but it must also meet the required NPM score.”

The guidance confirms that in most cases the NPM score should be calculated for products “as sold” rather than “as consumed”. Examples of scoring are given including for products that are pre-packed separately but then combined in a single outer packet - for example, granola with yoghurt. If either product is included in the schedule and has an NPM score of four or more, then the whole pre-packed product would be in scope of the restrictions.   

Where a meal consisting of several items is ordered from a takeaway menu, if any item in the meal is included in the schedule of less healthy food and drinks, then it may be in scope of the restrictions depending on its NPM score. If the nutrition information is available for the meal, then the guidance states that “for the sake of pragmatism”, the NPM score should be calculated on this basis. However, if the nutrition information is available for the individual items that form the complete meal, then the NPM score should only be calculated for the component or components included in the schedule. If any of these components have an NPM score of four or more, then the whole meal would be in scope of the restrictions.

For products requiring reconstitution prior to consumption – for example, cake mixes - the guidance states that the NPM score should be calculated based on 100g of the product reconstituted according to the manufacturer’s instructions. 

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. The implementation guidance, to be issued by the ASA, will provide further information on this and how the regulations will be enforced.

“The content of this guidance will be keenly awaited by businesses,” said Betts. “Implementation of the ban is now just over ten months away and businesses will be keen to ensure their planned activities are fully compliant.”