In brief
The UK Government has launched a consultation on draft Regulations that would explicitly exempt brand advertising (as defined in the draft Regulations) from restrictions on advertisements for "less healthy" food and drink products (LHF Products), which are set to come into effect from 5 January 2026.
- The draft Regulations define "brand advertisement" as advertising that promotes a brand, including the brand of a range of products, but exclude advertisements that depict specific less healthy food products through branding techniques, including imagery and names, as well as through photographic images which are either of the actual food or drink items (and not just their packaging), or of a food or drink product that is visually indistinguishable from an LHF Product.
- Subject to whether any other provisions apply, the draft Regulations allow company names that only include the name of a specific less healthy food product to potentially qualify for the brand advertising exemption, provided the company was established before 16 July 2025 and produces that product.
We previously reported that the Government had expressed its intention to introduce legislation clarifying that brand advertising should be outside the scope of restrictions on advertising of LHF Products which are due to come into effect from 5 January 2026.
The Government has now launched a consultation on a draft of The Advertising (Less Healthy Food) (Brand Advertising Exemption) Regulations 2025.
As noted in the ASA's previous draft guidance, advertisements must first be assessed with the ‘identifiability test’: if an advertisement might be considered to be for an identifiable LHF Product, it could fall under the restrictions. The draft Regulations explicitly add a second step, that it must then be considered whether the advertisement falls under the definition of a ‘brand advertisement’. This aligns with the existing policy intention that brand advertising which does not identify a specific LHF Product should be outside the scope of the restrictions.
Defining "brand advertisement"
The draft Regulations define 'brand advertisement’ as an advertisement that promotes a brand, including the brand of a range of products. 'Brand advertisement’ does not, however, include advertising that (i) depicts a specific LHF Product (unless this is only by way of name and falls under the scope of paragraph (6) of the draft Regulations, as discussed below); and/or (ii) includes a photographic image of a specific LHF Product itself, i.e. food or drink, as opposed to just the packaging or includes an image of a food or drink product that is visually indistinguishable from a specific LHF Product.
The draft Regulations further clarify the meanings of certain terms:
"Depict"
In line with the ASA's previous draft guidance, could include a name, text, imagery, audio cue, jingle or other branding technique.
"Range of products"
Are those with different recipes or composition, including different flavour variants. A group of products does not count as a range if the only difference is the size of a pack or packaging format.
"Specific"
Product is a single product that can be purchased and is identifiable as that product and no other product capable of being purchased on the market, by brand and composition. As above, if the only difference between products is size or packaging format, they would constitute the same single specific product.
"Photographic image"
Is a photograph or image that is made or altered by computer graphics to look like a realistic photograph, still or video. The "brand advertisement" exemption does not apply where a specific product may not be definitively identifiable, but the product in the image is visually indistinguishable from a specific LHF Product. For example, a picture of a chocolate bar out of its wrapper, which might be either a specific milk chocolate bar or a visually indistinguishable orange milk chocolate bar from the same brand range. However, advertisements may be permitted to include a photographic image of packaging that might belong to a product range that includes one or more LHF Products if the actual food or drink is not shown, and the packaging does not identify any specific LHF Product.
The Government has noted that the ‘content’ of brand advertisements is relevant to determine if the exemption applies. However, contextual factors, such as how a brand is perceived or what it is associated with (e.g. LHF Products), should not form part of the assessment.
Company names – paragraph (6) of the draft regulations
As mentioned above, "depicting" a specific LHF Product can include naming it. However, the Government has acknowledged that the names of brands for companies, franchises or other commercial entities may include the full name of a specific LHF Product, and it does not intend for advertisements by these brands to be automatically restricted. Instead, the intention is for an objective assessment on the actual content of advertisements.
Therefore, unless other relevant provisions apply, paragraph (6) of the draft Regulations provides scope for the 'brand advertisement’ exemption to apply to advertisements which only name a specific LHF Product, if it is included in the name of (or is the name of) a company, franchise or other commercial entity, provided it was established before 16 July 2025 and it is the producer of that product. The Government has specifically invited views as to whether this explicit clarification is required.
Consultation responses
The consultation only seeks feedback on the drafting of the brand advertising exemption and not on any other aspects of the policy. The consultation on the draft Regulations closes on 6 August 2025 and we will monitor for further updates.