How CAP and BCAP interpret brand advertising and the scope of new ad restrictions for "less healthy" food and drink products

In brief: 

• Rules around advertising of less healthy food and drink products (LHF products) come into effect in January 2026, with the aim of reducing childhood obesity. 
• The Government has made regulations incorporating certain clarifications to the scope and application of "brand advertising" which is exempt from the LHF Products advertising restrictions.  
• The Committees of Advertising Practice are also consulting on proposed rules and guidance for application of the brand advertising exemption and restrictions on LHF Products.  

In January 2026, new restrictions around the advertising of less healthy food and drink products (LHF products) on TV and online come into effect ( The Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024). The restrictions are designed to target childhood obesity, with the Government estimating they will lead to up to 7.2 billion calories being removed from UK children's diets per year. The restrictions comprise a 9pm watershed for advertising of identifiable less healthy food or drink products on TV, and a 24-hour restriction on paid-for advertising of such products online.  

However, as we have reported previously, concerns were raised by stakeholders about the treatment of 'brand advertising' which does not identify a specific less healthy product and whether such advertising should be caught by the restrictions. Dealing with these concerns led to the Government postponing the start date for the restrictions to take effect from October to 5 January 2026. 

As we reported in August, the Government took steps to explicitly exempt brand advertising from the forthcoming restrictions and, following a consultation, it has now made The Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025 on 10 September 2025 which incorporate certain clarificatory amendments ("the Brand Advertising Exemption Regulations"). The Committees of Advertising Practice (CAP and BCAP, the "Regulators") have now also issued a consultation covering proposed rules and guidance on implementing the advertising restrictions, taking into account the new exemption for brand advertising. For clarity, the new consultation is intended to be standalone and should not be read in conjunction with previous consultations.  

To recap, in order to determine if the restrictions apply to an advert, it will first be assessed by reference to the ‘identifiability test’ (i.e. if an advert might be considered to be for an identifiable LHF Product). The Brand Advertising Exemption Regulations have now added a second step (if the regulator considers that an advert may have the effect of leading a person in the UK to reasonably identify the advert as being for a LHF), namely whether the advert falls under the definition of a ‘brand advertisement’. If it does, the restrictions will not apply.  

We have set out some of the key amendments made since our previous update to the Brand Advertising Exemption Regulations below, as well as aspects of the Regulators' proposed implementation.  

Identifiability test 

In applying the identifiability test, the Regulators intend to: 

• Place weight on the content of an advert and the likely perception of it.  
• Assess adverts from the perspective of a notional ‘average consumer’, rather than the intended promotional message. 
• Assess whether reasonably well-informed, reasonably observant and circumspect persons in the UK could be expected to identify applicable adverts as being for a LHF Product (noting this can be from a piece of branding, or a combination of factors).  

The identifiability test may be met if: 

• There is a clear and prominent inclusion of a specific LHF Product as the focus of the advert's promotional message.  
• Adverts include references that distinguish specific variants of a LHF Product. For example, identifiers relating to specific products within a range, likely to lead to the identification of specific flavour variants. (See our previous update for the definition of a range of products under the Regulations.) 

Brand advertising  

As noted, brand advertising is exempt from the advertising restrictions. A "brand advertisement" is one that promotes a brand, including the brand of a range of products. The Brand Advertising Exemption Regulations clarify that brand advertising does not include: 

1. Content depicting a specific less healthy food or drink product (or products);   
2. Adverts that promote the name of a brand which is the name of a specific LHF Product (unless the company names exemption or 'historic brands' exemption below apply); or  
3. Content including a realistic image of a food or drink product where this shows the food or drink itself and is not only of the product’s packaging, and such product is visually indistinguishable from a specific LHF Product. 

1. When does an advertisement depict a specific LHF Product? 

Our previous update expanded on the definition of "Depict" and "Specific" in the initial draft of the Regulations. These definitions have been updated as follows: 

• "Depict" – further examples have been added, namely depiction of a specific LHF Product by way of brand characters and where a name of a specific LHF Product appears in the logo of a company or a brand of a range of products; 
• "Specific" – the definition no longer includes the wording "distinguishable". Rather, it now states that a specific LHF Product must be "differentiated" from other products capable of being purchased, unless this is only by pack size or packaging format.  

The Regulators have provided examples of when they would deem an advert likely to depict a specific LHF Product (and therefore not be in scope of the brand advertising exemption): 

• Imagery of specific LHF Products (for example, a pack shot) or representatives of specific LHF Products (such as brand characters that are personifications of a specific LHF Product).  
• Information that identifies a particular variant within a range of products (as defined in the Regulations, see here), such as creative content pointing to a specific flavour variant of an LHF Product.   
• An advert that includes a piece of branding that is related only to a specific LHF Product, such as a product’s logo (however, the company names exemption could apply, as noted below).  

The Regulators' proposed guidance reminds advertisers to be cautious over the combination of brand techniques that they adopt (for instance, caution in identifying a range of products in combination with a unique colour scheme or theme associated only with a LHF Product within that range). 

2. Company names / historic brands  

The brand advertising exemption may still apply where the name of the specific LHF Product: 

• is the name or is included in the name of a company/entity which was established before 16 July 2025 (and that name was held before then); or 
• is the name of the brand of a range of products and was in use as the brand of that range, for the purposes of marketing, advertising or retail sale before 16 July 2025 (and that name was held before then).   

The Brand Advertising Exemption Regulations were amended before being finalised to: (i) remove the requirement that, for the above exemptions to apply, the company must be the producer of the product named; and (ii) add the exception for names of brands of ranges of products (as above).  

As noted by the Government, the purpose of the additional exception in (ii) above is to avoid unintended consequences of banning all advertising, such as for corporate social responsibility, by existing brands of ranges of products that shared their name with a specific LHF Product which, for historical reasons, developed from an original product. However, those naming companies and brands of ranges of products in the future will need to take the new restrictions into account.  

3. Realistic imagery 

The Brand Advertising Exemption Regulations in draft form said that the brand advertising exemption would not apply where the advert included a "photographic image" of a specific LHF Product. This has been amended to a "realistic image", with the Government stressing that it does not expect adverts to include realistic images of food or drink products that are visually indistinguishable from specific LHF Products. A definition of realistic image has been added, i.e. a photograph, video recording or an image (still or moving, or however created/altered) "that is so realistic as to make it indistinguishable, for all practical purposes, from a photograph or video recording".  

The brand advertising exemption may apply if the realistic imagery only includes the product's packaging, provided this is generic to a range and the LHF Product itself is not shown.   

The Regulators advise that if an advert includes a picture of a product from a range of products that has variants (which could be in and out of scope of the restrictions, and are visually indistinguishable from a specific LHF Product), then it should include additional information to make clear that the product shown is not an LHF Product. 

Next steps 

We will provide a further update on developments following the CAP/BCAP consultation. In the meantime, food and beverage companies within scope of the restrictions (note that defined small and medium-sized companies are exempt) should review the updated guidance when planning advertising and launches.