Advertising bosses have launched a consultation on guidelines to help food and drink companies navigate the incoming HFSS ad ban, including a rollback allowing exceptions for thousands of brand ads.
The Grocer revealed earlier this week that ministers had published new regulations that meant non-specific brands would not be included in the pre-9pm watershed junk food ad ban. They are also to be excluded from online restrictions.
Yesterday the Committee of Advertising Practice (CAP) launched a consultation on what is its third version of guidance to aid companies planning their ads. The consultation will run until 9 October.
CAP – whose guidance will strongly influence the ASA’s policing of the new regulations due to come into force in January – said: “The 2025 regulations now explicitly exempt ‘brand advertisements’ from scope necessitating significant changes to the approach taken in the proposed implementation guidance.
“CAP and BCAP consider a new, standalone consultation exercise offering stakeholders the opportunity to comment again in full on all aspects of the proposals.
“With the statutory instrument now defining what ‘brand advertising’ is and exempting brand advertising from the restrictions, CAP and BCAP consider it is preferable for this to be a standalone consultation and not one that invites the reader to cross-refer to one or both previous consultations.
“Furthermore, previous consultation responses will not be considered as part of this process.”
Major food companies and broadcasters have agreed to bring in a voluntary ban on HFSS ads from next month, after ministers put back the launch amid a massive row concerning uncertainty over the brand advertising issue.
Sources told The Grocer lawyers would now be going through the latest set of guidance “with a fine-tooth comb” on behalf of food companies to see what type of ads would be allowed, and which would be banned.
Having cast aside previous guidelines that said brand ads would be roped into the ban, the CAP’s latest guidance outlines a raft of different types of brand ads that will now be allowed to be aired before the watershed, provided they do not identify special HFSS products.
Exceptions include generic product imagery, such as a stylised or abstract representation of a type of product, or ingredients being used in preparation, provided the imagery is “sufficiently distinct from a specific less healthy product supplied by the advertiser”.
Generic product-related imagery such as an item of packaging common to several products within a range is also likely to fall under the brand advertising exemption, the guidance states.
However, it says the brand exemption is unlikely to apply if an ad includes further information that has the combined effect of denoting a particular variant within the range. Examples include creative content pointing to a specific flavour variant of a less healthy product.
“Where a specific less healthy product is not depicted directly, guidance users should take care to ensure that the combination of brand techniques deployed (for instance, the identification of a range of products combined with a unique colour scheme or theme associated only with a specific less healthy product within that range) do not, taken together, result in an advertisement which depict a specific less healthy product,” the guidance ads.
It says that if an ad includes a piece of branding such as logos, livery or jingles relating to a company or a range of products, but does not include branding references related only to a specific less healthy product, it is likely to be in the clear.
Despite the new guidance, lawyers have warned it will only be when the ASA starts to police the new rules that complete clarity will emerge over what ads will face action.
Katrina Anderson, a leading regulatory lawyer at Mills & Reeve, told The Grocer this week: “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.”
A spokeswoman from the CAP said: “Responses are welcome from all interested parties, in particular, those who responded to the first two consultation exercises. The consultation will run for three weeks closing on 9 October 2025 at 5pm.”
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