New HFSS ad rules made easy

Why are you so excited? I haven’t seen you like this since the sugar tax came into force…

It’s finally here! After nearly five years of backtracks, delays and U-turns, the government’s junk food advertising ban – or, to give it it’s more official moniker, the “advertising restrictions on less healthy food and drink” – came into force today.

But haven’t companies had just four weeks to get their heads around the advertising watchdog’s latest set of guidance for the much-changed legislation? If only someone could provide a rundown of the key things everyone needs to know about the new rules…

Hold my beer.

So, in a nutshell, what happening?

Having faced several delays since first being proposed by Boris Johnson’s government in 2020, the HFSS advertising ban came fully into force today (5 January) across the UK.

It means that Ofcom-licensed TV services (i.e. most of the ones that anyone actually watches in the UK) are now officially barred from including any advertising for products identifiable as “less healthy” between 5:30am and 9:00pm. Plus, paid-for advertising for such products that’s intended to be accessed principally by persons in the UK is banned on the internet at any time.

OK, that feels like a big change. So, is there any leeway for companies to get used to the ban coming in?

In a word: no. But this has been a long time coming, so no one can really claim it’s taken them by surprise. Plus, companies have had since 1 October to get used to what life under the ban will be like.

That’s because earlier in the year, in one of many row backs on timing, ministers agreed to delay the introduction of the ban from October to January in return for trade bodies and media owners agreeing a voluntary ban across all the major TV channel and online sites.

How did that work out? Did it give us any idea of how things might look going forward?

Hard to say. Trade bodies have claimed that with one or two blips the “phoney war” went smoothly – but that’s likely to be because campaign groups are saving their ammo for when the real ban is in force.

One source said campaigners would be watching “like hawks” for ads that are in breach of the ban, so they can report them to the advertising authorities. Sources also predict that the advertising watchdog is likely to wait for a period of weeks, or months, before launching a spate of “test cases” against companies it thinks have breached the rules.

That sounds reasonable enough. But this feels like it’s going to be tricky to enforce. So, who’s in charge of doing that?

The Advertising Standards Authority (ASA) is the body that will oversee the rules, applying the guidance from its sister body the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP).

The watchdog is set to employ artificial intelligence on top of manual resources to scan ads, allowing it to cover the huge range of potential HFSS ads broadcast on the internet intended for a UK audience. This is a bit of a sore point for trade bodies, who claim it could mean a huge red tape exercise for companies to monitor each and every ad to provide proof it is compliant. However, the ASA can’t take legal action itself or impose fines on companies – that’s down to the government’s official body, Ofcom.

Read more:

• Ad ban guidance published as row over HFSS brands continues

• UK to launch ‘world-first’ mandatory health reporting consultation

• Wot, no OOH? Why the HFSS ad ban doesn’t go far enough

• HFSS ad ban: has last-hour guidance provided clarity at last?

• Brands should see HFSS policy as a golden opportunity

What kinds of penalties might companies be looking at if they’re found to have flouted the rules?

Well, interestingly, the ban makes history as it’s the first time Ofcom has been handed the powers to impose huge fines on companies that breach advertising rules. Under the ban, companies could be fined a maximum of 5% of annual turnover for their combined HFSS brands, or up to £250,000, whichever is the highest. However, most onlookers expect the ASA will be more likely to issue orders for companies to remove offending ads before fines are issued.

Are all food companies, no matter how big, set to fall under the new rules? Or does size matter?

No. Size does matter when it comes to the HFSS restrictions – the rules don’t apply to any food or drinks SMEs. These are deemed by the new rules to be companies who, on the first day of the UK financial year in question, employ less than 240 people, including international and franchise staff.

What about other exemptions? Will generic brand adverts that don’t feature specific HFSS products be covered by the ban?

Funny you should ask because, actually, the main reason the ban was delayed until now was the result of a huge row between the industry, campaign groups and politicians over how those generic brand ads should be treated.

It all got a bit loopy, didn’t it?

It did. Incredibly, the guidance that came out from the CAP at the start of December was the third different set of advice released – so much for clarity. Oh, and it was also seen as a massive row back on its previous guidance, which had warned that brand ads were very likely to be swept up in the net of the regulations.

But the Labour government made the extraordinary step of laying new regulations before parliament in September to ensure there were not “unintended consequences”, arguing that the legislation was never intended to stop brands with HFSS products from advertising altogether.

So, what generic brand ads will be exempt from the ban?

It’s still a bit tricky to say with absolute certainty, but the key mechanism introduced under the CAP’s interpretation of the new law is the so-called “identifiability test”. This is what the ASA will deploy in deciding whether ads feature “less healthy foods” (LHFs) and whether they feature prominently enough in the ad to merit action and be referred to Ofcom.

The guidance says that in assessing prominence, the ASA will consider factors such as whether a product is in the foreground or background, the duration of its appearance and how people’s attention is drawn to it, meaning that just because a HFSS product can be spotted on the screen, it doesn’t necessarily mean the ad is illegal.

“Imagery of less healthy products that people are unlikely to be able to recognise when viewing an advertisement in real time are unlikely to meet the identifiability test,” says the guidance. “This could be because the product is shown very briefly in the advertisement, or because it is in the background of an advertisement, resulting in it not being discernible.

“For example, advertisements that include fleeting references to less healthy products in the context of general imagery of supermarket shelves, or food or drink products on tables in a restaurant or as part of a retailer promoting their Christmas offerings.”

Does this mean we’ve finally seen the back of the ‘brand ads’ row, then? And are giant food & drink brands just going to be able to ride roughshod over the rules?

It’s unlikely we’ve quite seen the end of it. While the introduction of the identifiability test is widely interpreted as a major win for the food industry, brands would be foolish to think they can take liberties, especially with campaign groups still pressing for the advertising authorities to get tougher on this.

And what about the campaign groups? How are they reacting?

They’re not thrilled. The guidance says brands should proceed with caution, but that hasn’t stopped campaign groups from fuming at what they regard as a watering down of the rules.

“This is a questionable interpretation of regulations for restricting unhealthy food advertising,” says Fran Bernhardt, coordinator at Sustain, the alliance for better food and farming. “It’s important to remember that nothing in adverts is there by mistake, so the ASA is weakening the rules instead of disincentivising businesses from gratuitously promoting unhealthy foods and drinks – which would have been more in keeping with the aims of the policy.”

Meanwhile, the Obesity Health Alliance, a coalition of dozens of health groups, says the original intention of the ban was to allow companies to switch their advertising spend to healthier products. The government’s impact assessment claimed the policy would “remove up to 7.2 billion calories from UK children’s diets each year”. But the Obesity Health Alliance says the exemption for brands has instead encouraged firms to look at how they far they can push their ads.

Might it also encourage them to look at other types of media, too? Are they covered by the ban?

While the new rules apply to TV and online, outdoor advertising and radio have escaped the clutches of the government’s ban – again, much to the anger of campaign groups, who claim we’re already seeing those mediums providing a refuge for unhealthy brands.

Last month, the Food Foundation produced research claiming out-of-home advertising increased by 28% in the wake of the HFSS ad ban announcement, as companies prepared for the shift. McDonald’s was found to be the “worst offender”, having increased outdoor advertising spend by 71% from 2021 to 2024, but other brands such as Unilever, KFC, Pepsico, Mars, Mondelez and Coca-Cola also featured among the biggest spenders on outdoor advertising last year.

The Food Foundation said the exclusion of billboards, buses, bus shelters and other outdoor sites was a “major blind spot” of the legislation.

Is anything likely to be done about that?

Well, there are already clear calls for it to become the “next frontier” of the clampdown. And these were heightened when research commissioned by the Scottish government, reported by The Grocer in November, showed restrictions on outdoor ads introduced by local councils had proved effective in reducing obesity.

The review also showed that the clampdowns, which can be traced back to restrictions brought in by mayor of London Sadiq Khan and Transport for London (TfL), had driven a “snowball effect”, with up to 150 local authorities across England now looking at joining in.

It also pointed to academic research estimating that after 12 months, the restrictions brought in by TfL had reduced the number of people with obesity by 4.8% and led to 94,867 fewer cases of obesity than expected, according to analysis by the University of Sheffield and the London School of Hygiene & Tropical Medicine.

OK, so that’s OOH covered, what about social media? That’s obviously a huge space for food advertising, influencers, etc. Firstly, can a brand share content depicting LHFs on its own social media channels?

Post away! There are no restrictions applying to content posted to owned-media environments, and brands are free to repost organic content from users about how delicious their product is. The key is that you can’t pay the platform to boost or promote this content. That counts as ‘paid for’ content, which is heavily restricted.

TikTok says TikTok Shop counts as a retail environment under the control of a brand, so LHF products can be listed – like Lidl’s own-label viral smash hit Dubai Style chocolate. And they can be linked to from a brand’s own channel. Paying to boost a listing, however, is a no go.

What about working with influencers? Everyone loves influencers…

Creator-made content is indeed covered by the restrictions – if they’ve been paid to make it. That includes paying them to promote a LHF product in a ‘live’ stream. A creator can be paid to make content that only runs on the brand’s own channels, however, because placement of the advertisement has not been paid for.

They’ll just send them some freebies then?

Nice try, but no. ‘Gifting’ a creator counts as paying, as it “includes providing any consideration, monetary or non-monetary”. According to the latest CAP guidance, this is likely to include “reciprocal and affiliate relationships and arrangements”.

What about gamers? Do they count as influencers?

They count. And the same rules apply.

Pfft. Well, is there anywhere else in that kind of realm where can brands still advertise?

Podcasts and other audio-only content are completely unrestricted, as long as they don’t include any ads with visual elements. Whether that includes podcasters appearing on, say, YouTube, where they’re shown reading out a paid-for message is as yet unclear.

What about paying to boost the brand on supermarket website or aggregator apps? That’s not really advertising, is it?

Here’s where things get nuanced. It’s all about the commercial relationship between the manufacturer or supplier and the website owner or platform, and the ASA will “consider the terms”.

If payment “or a reciprocal arrangement” means a product listing has been placed in “a manner different to ordinary, organic product listings” and “afforded enhanced prominence on the site, app or in search results”, it’s likely to fall foul of the rules.

So many rules. It’s almost like creating policy is difficult when you’re being lobbied on both sides, isn’t it? Still, at least everything is sorted now, and everyone knows what to do…

Hold your horses, sonny. That’s certainly not the case. Not only has The Grocer been told by a media source that this “final guidance” is essentially just another step – and that it’s inevitable issues will start arising when the ban begins for real – but the government could be set to move the goalposts again in the new year.

The Grocer revealed it had set out plans to push ahead with a consultation over a proposed overhaul of the Nutrient Profiling Model (NPM), used to underpin both the advertising ban and the in-store HFSS promotions legislation. That could cause utter carnage, with hundreds of products already having been reformulated to meet advertising restrictions, not to mention many products being cast into a revised HFSS category. In short, no one can rest on their laurels right now, even after the long-awaited ad ban has finally come into force.