A cartoon M&M is a less healthy food: ASA issues further rulings on LHF advertising restrictions

Earlier this year, we explored the ASA's first rulings under the new restrictions on advertising less healthy food and drink products ("LHF products"), both in our webinar and in our article, New ASA Clarifications on Advertising Restrictions for Less Healthy Foods. Those decisions provided the first indication of how the regulator intended to apply the new rules in practice.

The ASA has now published a further six rulings, offering additional insight into its approach to enforcement. The latest decisions contain some unexpected outcomes. Most notably, the ASA concluded that the yellow cartoon M&M character was itself an identifiable less healthy food product. At the same time, complaints about advertisements featuring Domino's pizzas, KFC chicken products and a Burger King Whopper were not upheld because the specific products shown did not qualify as less healthy food products under the Government's nutrient profiling model.

Taken together, the decisions demonstrate that the ASA remains focused on the substance of an advertisement rather than assumptions about the brands or products involved.

Brand advertising is not automatically exempt

One of the clearest messages from the latest rulings is that advertisers cannot assume a campaign falls outside the restrictions simply because it is intended to promote a brand rather than a specific product.

In the M&M's decision, Mars argued that its Instagram post was promoting the M&M's brand generally. The ASA disagreed. It concluded that consumers would recognise the distinctive yellow, oval-shaped character as representing Peanut M&M's, meaning the advertisement amounted to promotion of an identifiable less healthy food product.

The ruling reinforces a point that emerged from the ASA's earlier decisions: where consumers are likely to associate an advert with a particular less healthy product, the regulator may look beyond the advertiser's stated intention and focus on the impression created by the advertisement itself.

Product identification remains critical

The rulings also show the importance of identifying precisely which product appears in an advertisement.

The ASA accepted that a series of Domino's social media advertisements featured the Vegi Supreme pizza on a classic crust. Domino's was able to demonstrate that this specific configuration was not classified as a less healthy food product. The fact that other variations of the same pizza might fall within the regime was not enough to establish a breach.

This approach reflects the ASA's willingness to examine products at a detailed level and highlights the value of maintaining clear evidence about the nutritional status of individual menu items and product variants.

Influencer marketing continues to attract scrutiny

Influencer marketing remains a significant enforcement risk.

The ASA has consistently emphasised that paid-for social media content falls within the rules, and the latest decisions have reinforced that position. Businesses using influencers should ensure that compliance considerations are addressed at every stage of the campaign process, from briefing and content creation through to approval and publication.

This is particularly important given the regulator's willingness to scrutinise social media advertising closely, as demonstrated by both the earlier Lidl rulings and these more recent decisions.

Paid online advertising remains firmly in scope

The new restrictions place particular emphasis on paid-for online advertising, and the ASA's latest decisions underline the breadth of their application.

One notable ruling concerned an Uber Eats video-on-demand advertisement featuring a Burger King Whopper. The case demonstrates that the rules may apply not only to manufacturers and restaurant operators but also to delivery platforms and other intermediaries involved in promoting food products online.

Businesses should therefore ensure that compliance reviews extend across all forms of paid digital advertising, including paid social campaigns, display advertising and sponsored content.

Check whether your products are actually caught by the regime

The latest rulings also provide reassurance that complaints will not automatically succeed simply because an advert relates to a well-known fast-food or takeaway brand.

The restrictions only apply to products that both fall within a relevant category of less healthy foods and satisfy the required nutrient profiling criteria. KFC successfully defended complaints relating to advertisements featuring a Fillet Burger, Pepsi Max and Mini Fillets by demonstrating that the products shown were not classified as less healthy food products. Similarly, Papa John's showed that the specific pizza featured in its Facebook advertisement fell outside the regime.

These decisions highlight the importance of maintaining robust nutrient profiling assessments and supporting evidence for products featured in marketing materials.