Following the UK government's recent publication of the Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025, CAP and BCAP have now published their consultation on the third (and hopefully final) version of their guidance about how they will implement the regulations.
As a reminder, from 5 January 2026, advertising of identifiable Less Healthy Foods (LHF) products on TV and Ofcom-regulated ODPS will be banned between 5.30am and 9pm, and paid-for advertising online will not be allowed at all.
After some confusion, the UK government clarified that pure brand advertising is not intended to be covered by the LHF restrictions. The new draft guidance covers various aspects of the new regime as well as updating the ASA's position on brand advertising. It emphasises the need to consider each ad on a case-by-case basis.
Don't forget the HFSS provisions in the CAP Code
The guidance also points out that where the LHF product advertising rules do not apply, ads for HFSS products must still comply with the CAP Code's rules on HFSS advertising. These restrict HFSS ads in media that are disproportionately popular with children and their content must not appeal to children.
The ASA says that it will consider the guidance when considering relevant ads, but the guidance does not limit the ASA's (or Ofcom's) discretion to decide whether advertising complies with the rules.
Brand advertising
An ad which depicts a specific LHF product is a product ad, not a brand ad, and therefore does not benefit from the brand advertising exemption. Generic product and packaging imagery will probably be acceptable, as will depictions of a range of products. However, the overall creative will be taken into account. If an image looks like a less healthy version of a healthy product, then there should be text to explain it is the healthier variant.
Identifiable less healthy product
The ASA will place weight on the content of the advertisement and what people are likely to perceive the advertisement is for. It will assess ads from the perspective of an "Average Consumer", and not on the advertiser's likely or expressed intent in terms of the ad's promotional message. The guidance also makes clear that an ad depicting a mix of products, both 'healthy' and 'less healthy', will be considered to contain identifiable less healthy products. Also, if you mention characteristics of products that someone will recognise as being for a LHF product (such as flavours or an obvious shape), it won't be exempt either.
Finally, it is also worth noting that influencer advertising will be caught by the restrictions on paid-for online advertising. So if you're a manufacturer of foods that come within scope, you'll need to reconsider your arrangements with your influencers and brand ambassadors and ensure that they understand the distinction between brand advertising and advertising for identifiable LHF products.
The consultation ends on 9 October, so there is only a short time to express your views. Please get in touch if you want any assistance, or if you would like us to submit a response on your behalf.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
