Brand advertising may not be exempt from junk food ad ban, regulator says

Brand campaigns may not be exempt from new laws restricting the advertising of “less healthy” food and drink – even if the ads do not show any specific products – the Committees of Advertising Practice (CAP) has warned.

CAP is responsible for writing the UK’s advertising codes, which are then enforced by the Advertising Standards Authority (ASA). On behalf of the ASA, CAP is undertaking a consultation about the new laws set to come into force in October restricting the advertising of less healthy products.

These laws ban ads with “identifiable” products in this less healthy category from TV before the 9pm watershed and prevent them from any online channels. The working assumption for many, including CAP itself, had been that, when the new laws come in, brand advertising for less healthy brands could be continued, provided there are no identifiable products in these campaigns. The government itself had issued guidance suggesting this would be the case.

However, having now begun the consultation process and taken legal advice, CAP says the advice it issues to advertisers is now likely to be more “circumspect” around the issue, meaning it cannot guarantee an exemption for brand advertising.

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The regulator states that the law itself “makes no reference to brand advertising”, instead, it applies the ban to ads with an identifiable less healthy food product. The exact wording of the law is: “If persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that product.”

“This is the test that affected advertisers and media need to consider when planning ahead for the implementation of the restrictions from October 2025,” writes CAP.

This wording in the legislation suggests the law could be applicable to ads where consumers are able to infer it is advertising a less healthy product, even if it is not explicitly depicted.

CAP is now revising its guidance for advertisers based on this. It says its updated guidance is likely to emphasise the importance of context.

“You should therefore consider carefully the specific content and media placement of your individual ads, and take appropriate account of the wider context, including your overall product and service offering, to assess whether your ad is likely to meet the test for the restrictions to apply,” it says.

Advertising trade bodies have reacted with frustration at the news, conveyed by the CAP, that the less healthy food (LHF) restrictions may apply to brand advertising.

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The Advertising Association’s CEO Stephen Woodford states that “the ability for companies to advertise is crucial for growth and competition”.

“This is why successive governments have agreed with industry that the brand exemption is important,” he says. “We have advocated throughout the legislative process for the brand exemption to be written into law and we have been repeatedly told that this was not necessary.”

Woodford expresses sympathy that the ASA has now been put in the position of having to enforce “inadequate legislation” that does not align with the government’s intention with the policy.

ISBA director of public affairs Rob Newman echoes these points. He states that one of the intentions of the law had been to incentivise companies that make less healthy foods to pursue reformulation so they could continue to advertise, something that would not be the case if the legislation effectively prevented them from advertising altogether.

“Brand owners sorely need urgent clarity on what they can and cannot put in their ads. For many, this is absolutely business critical,” Newman states.

CAP is aiming to issue its final guidance in the spring. This means many advertisers will have to “wait and see” what the legislation means for their advertising, says IPA director of legal and public affairs Richard Lindsay.

“Until then, advertisers, agencies and the media will be unable to plan and manage relevant campaigns with any certainty,” he says.