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Earlier this year, the UK introduced new advertising restrictions, expanding earlier rules to cover a wider range of products. While these new advertising requirements significantly reshape marketing, they also create opportunities for reformulation, brand-focused advertising and creative use of permitted channels for those willing to adapt. Guy Cartwright, managing associate at Stevens & Bolton explores the new advertising food order.
Public health concerns, and in particular, childhood obesity, are driving the tightening of the UK's regulatory approach to food advertising. While restrictions on products high in fat, sugar or salt (HFSS) have applied for some time, a new statutory regime governing ‘less healthy food’ (LHF) advertising came into force in January of this year. These measures significantly expand the scope of regulation and materially affect how, where and when less healthy food and drink products may be advertised.
What does ‘less healthy’ mean?
To fall under the new LHF rules, a food or drink product must meet both limbs of a two-part definition. First, it must belong to one of the 13 specified product categories, which include most prepared soft drinks containing added sugar, savoury snacks such as crisps, confectionery, desserts and puddings.
Secondly, it must be classified as HFSS under the Department of Health and Social Care’s nutrient profiling model.
The new LHF regime introduces two main advertising restrictions, which are broadly as follows:
A ban on advertising less healthy products on Ofcom-regulated television and on-demand services between 5.30 am and 9 pm
A 24-hour ban on paid-for online advertising of LHF products.
The practical effect is to remove less healthy food and drink advertising from peak-time television and from paid online media altogether, fundamentally reshaping how brands can reach consumers.
Scope and exemptions
Small and medium-sized food and drink businesses are not caught by the new rules, and certain media, such as radio and print, generally fall outside the scope of the new LHF rules. Some unpaid online content may also be exempt, provided specific conditions are met, and there are a number of other exemptions that could be applicable.
In addition, brand-only advertising remains permitted, so long as it does not feature or imply any identifiable restricted product, though the criteria can be complex and must be approached carefully.
A central concept underpinning the new regime is identifiability. Restrictions apply whenever a UK viewer could reasonably recognise that an advertisement promotes a specific less healthy product.
Manufacturers and brands must take care when developing campaigns, as creative elements, such as product packaging, distinctive shapes or familiar taglines, may bring an advertisement within scope.
Crucially, even where an exemption applies or the LHF rules do not bite, the existing HFSS advertising rules on child-directed advertising continue to operate and must still be complied with.
These recent changes mark a significant shift in the UK’s approach to regulating food advertising. Earlier rules were aimed primarily at protecting children, but the new watershed applies regardless of who the audience is. This reflects a broader public health objective to limit exposure to less healthy product advertising across the population.
There have also been policy discussions and public health proposals suggesting that future restrictions could extend to highly processed foods, although no such measures are currently in force.
No room for error
The Advertising Standards Agency (ASA) and Ofcom are the bodies responsible for regulating compliance with these new rules. The ASA has shifted how it carries out its duties, taking a more proactive approach to online ad regulation through the use of new tools such as AI-based monitoring systems. The use of AI systems has meant that it no longer solely relies on complaints from the public or manual searches to carry out its duties, making enforcement potentially easier.
With the ASA’s more proactive approach, it is now more important than ever that manufacturers and businesses ensure their advertising complies with the new rules, as a breach could result in enforcement action.
Breach of the rules can lead to the ASA requiring removal of adverts, publishing rulings or issuing alerts to media owners, while Ofcom may impose penalties, compliance directions or even suspend broadcast licenses in severe cases. There is also the potential for reputational damage.
Brands should also remember that although many different parties, such as agencies, influencers and media platforms, may be involved in creating and distributing advertising, ultimate responsibility for compliance still sits with the advertiser.
That means brands need to look beyond their own actions. Advertising arrangements, affiliate marketing and influencer partnerships models can create exposure if governance arrangements are not robust and appropriate contractual protections are not in place, with those in the advertising and supply chain bearing appropriate risks.
Adversity to opportunity
Brands and manufacturers are working hard to ensure that their products fall outside the scope of what is a less healthy product under the new rules, for example, by reducing overall sugar content.
Reformulation can also help strengthen a brand’s identity, assisting in its push for distinctiveness and building consumer confidence. The brand-only advertising exemption also provides an opportunity for brands to get creative and promote their overall brand without including a restricted product.
Manufacturers that view the new rules as an opportunity are likely to come out ahead and be in a position to adapt to further changes in light of the direction of travel.
By focusing on brand values and the wider product range, businesses can seek to build consumer trust and stay on the right side of the new rules. In the case of LHF, there is also the potential for brands ot focus on more traditional media such as billboards, bus shelters, tube posters and similar public space advertising.
