“Farewell dear consumers, we’re sorry we ever existed” the entire staff of Cadbury weep as they seppuku themselves en masse in the car park. OK, not quite the fantasy of social good nudge group Nesta, but seemingly not far off given its media release this week.

The group are appalled companies selling HFSS products have moved marketing budgets “into unregulated channels and formats” in the wake of legislation restricting the advertising of unhealthy foods.

What did it expect them to do? Simply cease all advertising, call it a day and tap out of the sugary snack game?

“Junk food companies are as incredibly adept as they are sinister at finding loopholes, shifting their marketing into places where the rules don’t apply,” says D’Arcy Williams, CEO of young persons campaign group Bite Back in Nesta’s release.

A rather extreme way of putting it. Having been hit with a raft of restrictions, brands are reasonably shifting spend to channels not covered by the legislation. It’s less sinister, more perfectly sensible.

As a result, according to Nesta’s slightly confusing maths, the present 8% (£190m) of total food and drink industry ad spend which falls within scope of the HFSS regulations – ie pre watershed ads, influencers and so on – will drop to 1% (£20m).

This is “leaving 99% of ad spend to continue unchecked” Nesta says. All ads are ‘checked’ of course – all advertising must be compliant with the law – it’s just that hardly any of the food sector’s spending will be in places the legislation deems most impactful on consumer behaviour and children’s minds. Arguably a win of sorts?

HFSS rules a ‘paper tiger’?

The Ad Association response to Nesta’s fury comes across as sober and sensible in comparison.

“The Nesta report is based on flawed assumptions which do not reflect the reality of how advertising works in the UK or the impact of the restrictions that the government introduced only two months ago,” the association told The Grocer.

“The government has committed to reviewing the impact of the restrictions after five years and any decision on future restrictions should wait until that review is complete. In the meantime, our industry continues to work closely with the government and the regulator to ensure high levels of compliance with all UK advertising rules,” a spokesman continued.

“It is essential that any proposals for further advertising restrictions are subject to a full impact assessment on their impact to the nation’s health and the creative industries.”

Nesta does make some sound points though. It says the “scale and impact of the gaps” in the restrictions “will potentially weaken its impact”, adding that the unrestricted channels “leave children and disadvantaged groups at higher risk of being exposed to unhealthy food advertising”.

“The policy is at risk of being a paper tiger,” says John Barber, director of Nesta’s healthy life mission.

“The government should look to amend the loopholes in the restrictions, taking care to include popular foods and common advertising tactics so that the legislation can do what it was designed to do – helping us to make healthier choices,” he adds.

A fair argument, although one weakened by Nesta’s close to conspiracy-spinning talk of “pressure from the industry” diluting the – eventually – passed law. Undoubtedly big food lobbied hard against any new restrictions for their business. But business always acts in its own best interests. It might not be pretty, but it’s not “sinister” either.

Over the next few years, it’s up to Nesta to build the case that HFSS legislation needs to be tightened up, if it believes doing so will genuinely improve health outcomes.

Over‑heated conspiracies and complicated calculations about where brands (compliantly) choose to spend their ad budgets are a distraction from that task.

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