New legislation introduces a “brand advertisements” exemption for “less healthy foods” – CAP and BCAP enter third consultation

The question

What does the “brand advertisements” exemption mean for businesses falling into the “less healthy foods and drinks” category? And where is CAP and BCAP on this topic?

The key takeaway

New legislation has clarified that ads that solely promote a brand, including the brand of a range of products, will be exempt from the new less healthy food and drink (LHF) product advertising restrictions. Further guidance on this exemption is expected following a consultation period. In the meantime, businesses selling LHF products will have to consider whether they can adjust their advertising practices to fall within this exemption.

The background

On 18 September 2025, the Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP) launched a third consultation to address revised proposals for rules and guidance to implement the upcoming LHF product advertising restrictions.

As reported in our Spring 2025 Snapshots and Summer 2025 Snapshots, new rules are being introduced to prohibit qualifying ads for identifiable LFH products from airing on Ofcom regulated TV services and on-demand programme services between the hours of 5:30am and 9:00pm, and to ban qualifying ads from paid-for space in online media at any time. These rules come into force on 5 January 2026. Initially, there was an exemption in place for “brand advertising”, however following push back from the industry, CAP and BCAP revised their guidance to introduce an objective “identifiability test” for qualifying ads. As such, ads would have been subject to new restrictions provided that “persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that [less healthy] product [or products]”. The Government continued to stress its intentions to exclude brand only advertising from the restrictions and confirmed that it would be introducing new legislation setting out the scope of this exclusion.

The development

On 10 September 2025, the government introduced the new legislation – the Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025 - which specifically exempts “brand advertisements” from the upcoming restrictions. According to the legislation, a “brand advertisement” is an advertisement that “promotes a brand, including the brand of a range of products”. The exemption includes where brands or product ranges share the name with an LHF. However, this exemption only applies where the brand was established before 16 July 2025.

The following are not to be regarded as a “brand advertisement”:

• ads depicting (ie representing by name, text, imagery, logo, audio cue, jingle, brand character or other branding technique(s)), a specific LHF product
• ads promoting a brand name which is also the name of a specific LHF product. A “specific” LHF product is a product which is capable of being purchased and is differentiated from other products capable of being purchased, unless it can only be differentiated by its packaging size or type
• ads containing a “realistic image” of a food or drink product itself which is “visually indistinguishable” from a specific LHF product. A “realistic image” is defined as a photo, video or still or moving image that is so realistic it is indistinguishable from a photo or a video recording.

Considering the new legislation, CAP and BCAP will be revising its guidance again and have called for stakeholders to comment once again on the implementation of the LHF advertisement restrictions. The consultation closed on 9 October 2025.

Why is this important?

Sellers of LHF products, on-demand services and owners of paid online space will all need to consider the effect of the “brand advertisement” exemption on its advertising and marketing practices going forwards, and whether and how those practices might need to be amended to remain compliant with the new restrictions, or whether the exemption provides them with a defensible way to avoid the scope of the new rules in some limited instances. However, businesses should keep a close eye out for CAP and BCAP’s updated guidance following the consultation, as it is only then that the practical effects of the brand ads exemption on the CAP and BCAP Codes will be known.

Further, businesses should factor in that Clearcast began applying the new rules from 1 October 2025, meaning that in practical terms, any new ads that require Clearcast’s approval will need to be compliant with the new rules, despite these not taking effect until 5 January 2026.

Any practical tips?

In-scope businesses should take careful note of the upcoming rules and brand ads exemption, and apply the current state of knowledge to all ads that will be live on or after 5 January 2026.

When the CAP and BCAP guidance is released in due course, businesses should review the extent to which any changes to CAP and BCAP’s interpretation of the rules and/or exemption impacts their upcoming ad campaigns and wider marketing strategies.

Autumn 2025