ASA gets tougher on brand advertising for “less healthy” food and drink products

The question

What does CAP and BCAP’s new “identifiability test” mean for the advertising of “less healthy” food and drink (LHF) products?

The key takeaway

Following concerns raised by advertisers, campaign groups and other interested parties, CAP and BCAP have decided to rethink previous guidance relating to the implementation of new laws on the advertising of LHF products. After seeking legal advice, the bodies have now published revised guidance and completed a second consultation, adopting what they have termed a more “circumspect” approach to implementation. A new “identifiability test” for qualifying ads has been imposed, meaning that generic references or advertising for ranges of products do not sit outside the new regulations, but instead whether an ad is in breach or not comes down to consumer “perception” – which inevitably means this type of advertising for LHF products is likely to be caught by the new rules.

The background

As part of the last Government’s response to concerns around childhood health and obesity in the UK, the Communications Act 2003 was amended in 2022 to include restrictions on ads pertaining to “identifiable” LHF products. LHF products are subset of the products categorised as high in fat, sugar or salt (HFSS), and have long been targeted by public health bodies and campaign groups in this area.

The revised rules, which are due to come into effect from October 2025, will see qualifying ads prohibited from airing on Ofcom regulated TV services and on-demand programme services between the hours of 5:30am and 9:00pm, and banned from paid-for space in online media at any time.

Last April, we discussed the CAP and BCAP first consultation on the proposed implementation of the new rules, which ran from December 2023 to February 2024 and offered some early insight into how the Advertising Standards Agency (ASA) would likely enforce the legislation. Notably, the early guidance made a point of identifying ads that would fall outside the scope of the new law. For example, CAP and BCAP determined that “brand advertising”, defined in this context as ads which did not explicitly feature or refer to specific LHF products, would not be subject to restriction. On this reading of the rules, ads depicting ranges of LHF products or using only generic references to or images of LHF products would entirely avoid curtailment, so long as no specific LHF product was identifiable to the viewer.

The development

Interested parties from across the food and drink, advertising and media industries, as well as non-industry actors such as public health groups, questioned the seemingly confused approach adopted by CAP and BCAP in its original guidance.

Much of the contention centred around the meaning of the word “identifiable”, and the extent to which it was conflated with “specific” in the initial consultation. Respondents queried, for example, how an ad for a range of entirely LHF products could not comprise an ad for an identifiable LHF product or products. Attention was also drawn to the fact that the legislation makes no reference to ranges of or generic references to LHF products, and that the guidance should therefore not have distinguished these ads from those depicting “specific” LHF products.

On the basis of the responses and following receipt of legal advice, CAP and BCAP revised their guidance and published a second consultation, which ran from 18 February to 18 March 2025. The renewed guidance now incorporates an “identifiability test” for qualifying ads. CAP and BCAP have done away with the blanket branding exclusions of the early guidance and replaced them with an objective test, meaning ads will be subject to the 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]”. In other words, the fact that an ad uses only generic references or ranges of products is no longer enough to flaunt restrictions – it’s all about perception.

Why is this important?

This shift in approach by CAP and BCAP shows, firstly, that the regulator doesn’t always get it right first time around. Advertisers should be cognisant to the grey area that exists between legislation and implementation and may wish to engage with future relevant consultations to increase the likelihood that regulation is both properly understood and effectively implemented. The change also highlights the increasing emphasis placed on how ads are construed by their ultimate viewers, with decreasing focus placed on an ad’s intention or purpose.

Any practical tips?

• In the food and drinks industry: Advertisers in the F&B industry should play close attention to the revised guidance and any further updates to ensure full compliance with the new rules from October. Ads containing only generic references or even the mere use of branding or logos affiliated with LHF products are likely to be caught.
  
  
• Further afield: Advertisers everywhere should be alert to the increasing importance of audience perception. This comes with a set of complex challenges and will require ever-more careful consideration of how the words, imagery and overall narrative employed in adverts are likely to be perceived by the viewer, irrespective of intention.

Spring 2025