CAP update shows complexity of UK ‘less healthy’ food and drink advertising ban

Regulatory law expert Zoe Betts of Pinsent Masons was commenting after the CAP published an update on progress with its draft guidance interpreting the new restrictions, next steps and expected timelines. The new restrictions will ban advertising of less healthy high fat, salt or sugar (HFSS) food and drink on TV and on-demand services between 5:30am and 9pm, with the adverts prohibited in paid-for online media at any time. The new rules are set to come into force in October.

Betts said: “The CAP's revised guidance is likely to clarify that adverts which do not explicitly refer to or feature a less healthy product may still be restricted.  This will be the case if people in the UK could reasonably be expected to be able to identify those adverts as being for one or more less healthy products. Whether restrictions apply in any specific case will be a question of fact and judgement.”  

Advertisers are advised to “consider carefully the specific content and media placement of adverts, taking account of the wider context, including their overall product and service offering”.

Following a consultation on the proposed guidance last year, the regulators “ now consider that some parts of the proposed guidance are likely to require revision, particularly parts relating to brand advertising”. The term “brand advertising” is used here to mean advertising by brands that does not explicitly refer to or feature products.

Based on its understanding of the legislative restrictions, the CAP’s draft guidance had advised, with qualifications, that adverts featuring branding relating to a range of entirely “less healthy” products would fall outside the scope of the restrictions if they do not contain depictions or references to a specific less healthy product. This understanding was also said to have taken account of government statements such as “brand advertising [can continue to advertise]… provided there are no identifiable HFSS products in the adverts”. 

However, the CAP is now proposing to revise its guidance to reflect the fact the legislation makes no mention of brand advertising. Instead, the legislation restricts adverts for an identifiable less healthy product and provides that a product is identifiable in relation to adverts “if persons in the (UK) … could reasonably be expected to be able to identify” the advert as being for that less healthy food product(s).

The CAP update emphasises that “this is the test that affected advertisers and media need to consider when planning ahead for the implementation of the restrictions from October 2025”. The CAP anticipates consulting on the revised guidance in the coming weeks and publishing finalised guidance in spring 2025, “barring any unforeseen developments”.

Betts said: “With barely eight months to go until the restrictions come into force, the latest update highlights the complexities food and drinks firms and advertisers will be required to consider. The fact that the regulator misinterpreted the legislation will give little comfort. Stakeholders should look out for the promised consultation on the revised guidance and make sure their voice is heard in advance of the restrictions coming into force.”