CAP publishes final guidance on "less healthy" food and drink as 9pm watershed ad ban comes into force

The Health and Care Act came into force in 2022, amending the Communications Act 2003 to impose a new ban on ads for "identifiable" less healthy food and drink (LHF) products from appearing on Ofcom-regulated TV and on-demand services between 0530 and 2100 and in paid-for space online at any time. After some delays and postponements, these rules finally came into effect on 5 January 2026.

Following three consultations on the implementation of the restrictions in the CAP Code (and the government being forced to implement specific and clear secondary legislation to deal with one specific exemption – see further below), CAP published its final guidance on the new restrictions on 4 December 2025.

Further to our updates in previous editions of Snapshots regarding the new restrictions, the final guidance contains some important clarifications – as follows:

• In-scope products: the final guidance lists additional examples of in-scope products, including ready meals, battered or breaded products and sandwiches. These are also set out in the relevant secondary legislation clarifying the scope of the products within the restrictions, but their inclusion signals that the ASA wants to highlight these categories as in-scope.

• Delivery services and intermediaries: the guidance confirms that ads by food delivery platforms or similar intermediaries showing or referring to LHF products will also be caught within scope of the restrictions. With that said, the SME exemption can apply to an ad by a non-SME delivery service where the ad does not promote its products and instead is on behalf of a food and drink SME. Sponsored or enhanced product listings on a non-SME platform may also benefit, provided only the SME pays for it.

• The identifiability test: the advertising restrictions only apply to ads that feature an identifiable LHF product. The test will be whether the notional "average consumer" could reasonably be expected to be able to identify the ad as promoting an LHF product. Additionally:
  • ads that feature or reference a specific less healthy product in a "clear and prominent" manner will likely meet the identifiability test
  • factors relevant to the assessment of "prominence" include the positioning and duration of product references and how attention is drawn to them
  • images shown briefly or in the background that are unlikely to be recognised (eg images of supermarket shelves or food or drink products on restaurant tables) are unlikely to meet the identifiability test
  • ads that do not directly show or refer to an LHF product may be caught where they use branding relating to "a range of mostly" LHF products or combine company logos or imagery associated with an LHF product.

• Brand advertising exemption: after a controversial journey, brand advertising has been confirmed within both secondary legislation and CAP's guidance as being exempt from the restrictions. There are, however, some key limitations to benefitting from this exemption, including that the exemption does not apply where (i) an LHF product is depicted within the ad (ii) the relevant brand name includes the name of a specific LHF product (unless the brand name was established an in use prior to 16 July 2025); (iii) there is any realistic imagery of unpackaged food or drink in the ad where such food that is visually indistinguishable from a less healthy product (eg Coca Cola and Diet Coke look the same in a glass).

• Influencer marketing: the prohibition on paid-for ads includes "reciprocal and affiliate" relationships and gifting arrangements between brands and influencers in exchange for the influencer publishing content on their own social media. Conversely, the guidance clarifies that paying influencers to create or feature in ads that are then posted by an advertiser only on that advertiser's own website or social media accounts will not be caught by the restrictions.