Following its consultation over a year ago, the Advertising Standards Authority (ASA) has published an update on proposed revisions to its guidance to implement the new restrictions on "less healthy" food and drink products (LHF Products). These restrictions enter into effect from October 2025, and arise from amendments to the Communications Act 2003 (Act) provided for by The Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 (Regulations).
The upcoming guidance, which is set to be published soon for further public consultation, will clarify that the restrictions, subject to any relevant exemptions, will still apply to ads that do not explicitly refer to or feature an LHF Product. The determining factor will be whether persons in the UK could reasonably deduce that the ads are promoting an LHF Product.
Changes to the Act
From October 2025, the ads for "identifiable" LHF Products will be banned from:
- appearing in Ofcom-regulated TV services between 5:30am and 9:00pm;
- appearing in Ofcom-regulated on-demand programme services between 5:30am and 9:00pm; and
- being placed in paid-for space in online media at any time.
In December 2023, the ASA published a consultation on its proposed guidance for implementing the amendments to the Act, which closed in February last year.
Exemptions and in-scope products
There are certain exemptions from the new restrictions, including for small or medium enterprises. There are also some exempt products such as those that meet the requirements (set out in the Regulations) of having a special medical purpose, being for infants or young children, or which are total diet replacements for weight control.
For products which are not exempt, the Regulations contain categories which are deemed to be in scope of the restrictions to LHF Products, including:
- soft drinks which satisfy certain requirements (excluding alcohol substitutes which meet other conditions);
- certain savoury snacks (such as crisps);
- breakfast cereals;
- confectionery including chocolates and sweets;
- ice cream and other related products such as ice lollies;
- frozen yoghurt and water ices;
- cakes and cupcakes;
- sweet biscuits and bars;
- "morning goods" such as croissants and other pastries;
- desserts and puddings;
- sweetened yoghurt and fromage frais;
- pizza (except plain pizza bases);
- certain potato products; and
- other products such as ready meals, breaded fish and poultry products, as well as sandwiches.
Proposed revised ASA guidance
The ASA's initial guidance, published in 2023, aimed to assist advertisers and the media in navigating the restrictions to LHF Products. However, based on feedback and advice it has received on the proper legal interpretation of the Regulations, the ASA is now contemplating a key change to that guidance:
- The original guidance advised, with qualifications, that ads that feature branding that relates to a range of entirely "less healthy" products would fall outside the scope of the restrictions if there were no depictions or references to a specific less healthy product in the ad. This was as a result of its understanding of the Regulations and Government statements such as that "brand advertising [can continue to advertise] … provided there are no identifiable [LHF] products in the adverts". However, as a result of consultation responses and legal advice on the interpretation of the legislation, it has proposed new guidance on this point.
- The new guidance is even where ads do not explicitly refer to or feature an LHF Product, they may still be restricted, where persons in the UK could reasonably be expected to be able to identify the ad as being for an LHF Product. The applicability of the restrictions will be determined on a case-by-case basis, and the ASA notes that its guidance will not definitively categorise ads from particular brands, who will instead need to make a thorough evaluation of their own content.
Looking ahead
The ASA is now preparing revised guidance for advertisers which will soon be subject to another round of consultations, with a view to publishing the final guidance as soon as possible in the spring. We will report on this further when the revised guidance is published for consultation.