On 10 September, Ashley Dalton, Parliamentary Under-Secretary (Department of Health and Social Care) made a statement in the House of Commons confirming that the UK government would be laying the Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025 and Explanatory Memorandum before Parliament.
She said that the government has been careful to protect the primary policy objective of the new restrictions on advertising for Less Healthy Food. This will be achieved by ensuring the Brand Exemption Regulations set robust and objective criteria so that they only permit brand advertising that does not identify specific Less Healthy Food (or drink) products. The government does not want to pigeon-hole brands as 'less healthy'. Instead, it wants them to have incentives to reformulate and promote their healthier products. The new Regulations aim to help the regulators, such as the Advertising Standards Authority, to provide clear guidance on how they will enforce the restrictions. They are also aimed at allowing industry to invest in advertising campaigns with confidence that they will comply with the new rules.
The government has now also published its response to its consultation on brand advertising. The advertising restrictions for Less Healthy Food on TV and online will officially take effect UK-wide on 5 January 2026. However, as we've reported before, advertisers and broadcasters, with support from the online platforms, have agreed to voluntarily comply with the restrictions in line with the government's policy intentions from 1 October 2025. This has created the time and space for the government to clarify the uncertainty about brand advertising without having to delay the implementation of the new Less Healthy Food regime even more.
As a first step, if an advertisement was considered by the regulator to be for an identifiable Less Healthy Food product, it would potentially be restricted. If it is not considered to be an advertisement for an identifiable Less Healthy Food product, it would not be restricted. It is therefore expected that the majority of brand advertisements will already be out of scope of the restrictions.
However, as a second step, if the regulator considers that an advertisement may have the effect of leading a person in the UK to reasonably identify the advertisement as being for a Less Healthy Food, it will then consider whether the advertisement falls under the definition of a 'brand advertisement' set out in the Regulations.
A "brand advertisement" is defined as an advertisement that promotes a brand, including the brand of a range of products. A range of products is a group of products composed of variants of a product, such as different flavours, but does not include a group of products where such products are differentiated only by pack sizes or packaging format.
If advertising is for an identifiable product, it will be exempt from the scope of the ban if it promotes a brand, including the brand of a range of products (products which vary by more than just size of pack and packaging), as long as it does not depict a specific Less Healthy Food product. Depict means 'represent' by way of a name, text, imagery, logo, audio cue, jingle, brand character or other branding technique or combination of branding techniques.
A specific product means a food or drink product that is capable of being purchased and has characteristics that make it identifiable as that product and no other product by brand and composition. If the only difference between the products is the size or packaging format, they would constitute the same single specific product and not a range of products.
An advert is not a brand advertisement if it includes a "realistic image" which shows a photograph or video recording of a food or drink product or other image, whether still or moving, and however created or altered, which is so realistic as to make it indistinguishable, for all practical purposes, from a photograph or video recording of a specific Less Healthy Food product. This is to prevent advertisers from showing realistic images of Less Healthy Food products and arguing that it should be exempt from the restrictions because it is not definitively a "specific" Less Healthy Food product.
To avoid unforeseen consequences, an advert can refer to a Less Healthy Food product's name (including in a logo) if it is either the name of a commercial entity established before 16 July 2025 which used the name before that date, or the name of the brand of a range of products used before 16 July 2025. That date was chosen because it was when the regulation was published for consultation.
The government says that it will now work closely with Ofcom and the ASA as they finalise their implementation guidance.
So while you gorge yourself consuming the main course, in the form of the government's new Regulations, don't forget to leave yourself room for dessert, in the form of the ASA's revised guidance, which we expect to be served later this autumn.
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