Prime minister in waiting Andy Burnham admits he still bears the scars of intense lobbying by broadcasters and food companies over the fiercely contested issue of “junk food” advertising.

Reflecting on his push for a pre-9pm TV watershed as shadow health secretary in 2014, Burnham told a Nesta report last year: “The biggest one that I recall was commercial television… They lobbied me hard about those things, because I was quite persuaded about [the post-watershed ban] but there was a very real impact on what was then becoming an increasingly fragile broadcasting landscape.”

Now, with just weeks to go before the former mayor of Manchester is expected to become the newest occupant of No 10, he faces decisions on food policy which could make those previous battles look like a walk in the park.

The stage is now set for an almighty clash between health campaign groups, politicians and the food industry after today’s landmark ASA rulings make it much clearer (for now) how the TV and online ban will impact some of the UK’s biggest brands. Or not, as the case may be.

ASA’s shock ruling

In what came as a shock move for many, the ASA cleared a string of ads for Burger King, Domino’s Pizza, KFC and Papa Johns as well as rapid delivery giants like Uber and Deliveroo, all of which face a huge advertising opportunity during the ongoing football World Cup.

The chief reason is that food companies have found ways to neatly sidestep the ban, with adverts that either exclusively or predominantly feature products classified as non-HFSS under the government’s 2004 nutrient profiling model. That is the very model at the centre of an increasingly bitter dispute between ministers and industry, as the government pushes to replace it with a far tougher 2018 version that would bring tens of thousands more products into scope.

Today’s rulings are the predictable fall out from last year’s extraordinary series of events, which saw both the government and the ASA carry out an impressive succession of u-turns over what type of ads brands would be allowed to get away with.

Health campaigners, who have accused ministers of “gutting” the HFSS legislation, argue the ASA decisions confirm their worst fears: that the legislation contains loopholes wide enough to drive a “Coca-Cola-sized” truck through – or, in this case, an extra-large pizza, provided it happens to be a Vegi Supreme.

Fran Bernhardt, commercial determinants co-ordinator at Sustain, told The Grocer the rulings were the “inevitable consequence of the government’s decision to bow to industry pressure”.

The green light for fast food chains will only add fuel to claims that the ban has been delayed, narrowed in scope and weakened in its enforcement, to the point of becoming what Nesta described in March as a “paper tiger”.

HFSS or not HFSS? That is the question

The ASA, however, points out that the rulings also illustrate a widespread misunderstanding over what actually counts as “less healthy food”. It may seem counterintuitive, but brands like Domino’s, KFC and others have had years to prepare for the restrictions, investing heavily in reformulation and developing products that fall outside the HFSS definition. If a product does not exceed the thresholds set out in the government’s NPM on a per-100g basis, it is simply not classified as HFSS..

For many though, the judgements will leave a bad taste in the mouth. How many football fans ordering a Domino’s Vegi Supreme pizza during a World Cup match stuck to the recommended portion size and washed it down with a non-HFSS drink?

Similarly, the notion that a Burger King Whopper can benefit from the same regulatory treatment is enough to make some campaigners see red.

Yet, as ASA CEO Guy Parker states: “Today’s rulings provide clarity on how the ‘brand exemption’ aspect of the rules applies in practice. They also show that less healthy products can be hard to spot.

“Some specific products that people understandably assume are less healthy are not in fact classified as less healthy under the NPM.”

The big question now, of course, is what happens next. Ministers are still considering whether to push ahead with plans for a new NPM, which would dramatically expand the number of products captured by the restrictions.

Food and drink bosses warn the change would undermine years of investment in reformulation, with products such as cereals and yoghurts that have been improved to meet current standards suddenly finding themselves back in scope.

Meanwhile, the concerns Burnham recalls from his time as shadow health secretary have not gone away. As Sky’s takeover bid for ITV’s broadcasting and streaming assets shows, the commercial television sector is, if anything, far more fragile and uncertain.

So where will our new PM land? Will the man who last year launched a campaign to stamp out junk food ads across Greater Manchester’s travel network side with campaigners and tighten the rules still further? Or, as he considers ways to tackle the cost of living crisis and help revive Labour’s popularity among hard pressed shoppers, will he listen to retailers and suppliers who warn the move will lead to a massive increase in costs and higher prices?

Food may not have been top of Burnham’s agenda when he launched his fight to take over from Keir Starmer, but it is already shaping up to be one of the biggest battles he will face. Even if, for him, it’s nothing new. 

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