New ASA clarifications on advertising restrictions for less healthy foods

From 5 January, brands will face stricter rules on advertising less healthy food and drink products. The rules are complex and subject to certain exemptions – for more information see our previous webinar and article. 

Ads for less healthy food and drink products will be banned on TV between 5:30am and 9:00pm and in paid online advertising at any time. The ASA’s latest statement (4 December) clarifies how these restrictions apply.

Key Updates:

• Programme sponsorship: Classified as advertising, sponsorship slots must comply with both content and scheduling rules under the Ofcom Broadcasting Code.
• Definitions: “Less healthy” foods differ from HFSS (high fat, salt, sugar) products, but both are regulated. Ads for identifiable “less healthy” products face the 5:30am–9:00pm TV ban. HFSS ads have additional restrictions (see rules 32.21 and 32.22).
• HFSS restrictions: HFSS ads cannot appear in or near programmes aimed at under-16s. Ads must not target under-16s through media selection or context. No medium should carry HFSS ads if over 25% of its audience is under 16.
• Brand advertising: Allowed with caveats. The ASA will focus on ad content when applying brand exemptions. The exemption does not apply if:
  • The ad depicts a specific less healthy product (beyond just its name/logo).
  • The brand name is the same as a less healthy product.
  • The ad includes a realistic image of a less healthy product.
• SME exemption: Applies to businesses with fewer than 250 employees at the time of the advertising arrangement. If a non-SME delivery service advertises on behalf of an SME, the exemption does not apply. However, sponsored listings paid for solely by an SME remain exempt.
• Influencer marketing: Paid influencer content counts as paid online advertising. Ads created by influencers for an advertiser’s own social channels without paid placement are permitted.
• Identifiability test: Ads showing less healthy products briefly or indistinctly (e.g., in background scenes) are unlikely to breach rules

Compliance Matters:

These clarifications effectively amend legislation, meaning non-compliance is a breach of consumer law, not just voluntary codes. The rules stem from the Communications Act 2003, with exemptions detailed in 2024 and 2025 regulations. ASA guidance aims to help affected businesses comply.

Need clarity on these new rules? Our Intellectual Property team can help you navigate the changes and review your upcoming campaigns. Contact Iona Silverman to arrange a conversation.