Just in time for the summer holidays, the UK government has published its draft Advertising (Less Healthy Food) (Brand Advertising Exemption) Regulations 2025 for consultation.
The advertising restrictions (comprise a ban on advertising less healthy food or drink products on TV between 5:30am and 9pm, and a ban on paid-for advertising of these products online at any time.
Our readers will remember that there has been controversy about whether the less healthy food restrictions apply to brand advertising. The government has now published the draft regulations to resolve the issue once and for all.
The government says that brand advertising should not come within the advertising restrictions as long as the advertising isn't for an identifiable less healthy food product. This is to make sure that brands are not pigeon-holed as 'less healthy' and have incentives to reformulate and create healthier products.
As a first step, advertisements will be assessed in line with the 'identifiability test' in the primary legislation. If an advertisement might be considered by the regulator to be for an identifiable less healthy food or drink product, it would potentially be restricted. If it is not considered to be an advertisement for an identifiable less healthy food or drink product, it would not be restricted. This means that pure brand advertising is already likely to be out of scope of the restrictions based on the primary legislation.
However, as a second step, if the regulator considers that an advertisement may have the effect of leading a person to reasonably identify the advertisement as being for a less healthy food or drink product, it will then consider whether the advertisement falls under the definition of a 'brand advertisement' set out in the draft regulations. As the draft regulations can only rule advertisements out of the restrictions, they need to be carefully drafted to ensure that they do not have any unintended consequences.
The draft regulations provide objective criteria for their application. A 'brand advertisement' is defined as an advertisement that promotes a brand, including the brand of a range of products. This only applies if the content of the advertisement does not depict a specific less healthy food or drink product or show a photographic image of a food or drink product that is visually indistinguishable from a specific less healthy food or drink product.
The draft regulations make clear that the exemption is concerned with the 'content' of brand advertisements so that contextual factors, such as the perception of a brand or its association with less healthy food or drink products, do not form part of an advertisement's assessment. This aligns with the policy intention that brand advertisements that do not identify a specific less healthy food or drink product are not in scope of the restrictions.
The consultation ends on 6 August. CAP and BCAP will be able to review their draft implementation guidance with a view to the restrictions coming into force from 5 January 2026.
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