The HFSS ad ban is coming – but does anyone know what it means?

With less than two weeks to go until a voluntary ban by the food industry and major broadcasters ushers in a new era for HFSS advertising – or rather, the lack of it – the countdown to change is well underway. From January, the long-awaited legislation will finally come into force, restricting the promotion of high fat, salt and sugar products on TV and online platforms.

Yet despite multiple government interventions, there is still a marked degree of legal uncertaintyover what will and won’t be permitted. Questions persist around brand advertising – for companies like Kellogg’s, Cadbury, Deliveroo, Just Eat, Domino’s and Pizza Hut, it is unclear what will be acceptable, especially when their campaigns don’t feature specific HFSS products.

The government’s decision in May to delay the introduction of the ban sparked outrage among health campaigners, who accused ministers of bowing to industry pressure while failing to provide the clarity needed to enforce the rules effectively.

Despite repeated statements from ministers, the government came to the conclusion it would have to rewrite the legislation in order to clear up this huge area of legal debate.

Greater HFSS clarity

Having brought in a draft statutory instrument in the summer, last week ministers published those additional regulatory details for which many in the industry had called. They confirmed that thousands of food and drink ads that faced being outlawed under previous interpretations of the laws by advertising bosses would now be allowed after all.

The move has been greeted as providing “much greater clarity” by some leading industry and broadcasting sources, although everything is relative when it comes to clarity on this issue.

“Although the statutory instrument is very technically worded, essentially it means if you are Cadbury and you do a drumming gorilla ad and that ad doesn’t show a less healthy product then you can run that on TV as a brand ad,” one senior broadcasting source told The Grocer.

However, as the many people in the food, marketing, legal and regulatory industry who are spending countless hours working on this will agree, that is not quite the same as ensuring anything like complete clarity over the ban.

The next eagerly awaited milestone is the publication of the Committee of Advertising Practice’s (CAP) third (yes, you read that right) set of guidance for companies. This is an extraordinary development given its repeated u-turns over the past two years on whether brand advertising would be included in the clampdown.

Now the legislation has been passed by ministers it seems likely the CAP will have no option but to do a complete u-turn on its second set of guidance, which came out in January. It revealed the new 9pm watershed and online ban would include companies associated with HFSS products even if they were not specifically identified in marketing campaigns.

As the regulator charged by Ofcom to enforce the new regulation, CAP guidance and its subsequent policing by the Advertising Standards Authority, with which it is closely linked, is going to have seismic consequences for food and drink companies.

Happy (healthy) holidays 

As things stand, a huge array of companies already booking advertising for Christmas, Valentine’s Day, Easter and even more mundane dates in the advertising calendar, have been effectively doing so by way of a calculated gamble. Unless, of course, they only sell non-HFSS products.

“The thing that my clients are still grappling with the most is how prominently an HFSS product has to feature in an ad for it to amount to being identifiable,” says Katrina Anderson, a leading regulatory lawyer at Mills & Reeve.

“If you imagine there is a scale from a product being completely blurred out to being front and centre of the ad, somewhere along that continuum it becomes an HFSS ad.

“The big question is where does the ASA stand as a regulator on these issues.”

Anderson says that while the government’s latest intervention has provided companies with more of a firm legal footing, they are still about to embark on a new era in advertising with precious little actual certainty.

“It’s insane that I’ve got clients creating advertising at the moment without guidance,” she adds.

Little wonder then that her army of lawyers will be watching like hawks for when the CAP’s latest attempt to explain the way forward does emerge in the days to come. And even then, the acid test will only come when after January we start to see the first cases of companies being found in breach.