We previously published an update detailing the ASA's updated guidance (which was subject to a further consultation) to implement new restrictions on "less healthy" food and drink products (LHF Products). These restrictions were due to come into effect from 1 October 2025, and arise from amendments to the Communications Act 2003 (Act) provided for by The Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 (Regulations).
In its revised guidance, the ASA clarified that, even if an ad does not explicitly refer to or feature an LHF product, it could still be subject to the restrictions (where applicable) if persons in the UK could reasonably be expected to be able to identify the ad as being for an LHF product. The ASA's consultation refers to this including advertising that contains branding (including but not limited to logos, livery, straplines, fonts, colour schemes, characters, audio cues) closely associated with a specific less healthy product, but which does not directly refer to or depict a less healthy product. Examples of brand advertising may include promoting non-product attributes, such as corporate social responsibility commitments, customer experience, and/or advertising healthier products within portfolios. A brand's association or connection with an LHF product alone is unlikely to bring an advert into scope of the restrictions.
However, the Government has now expressed its intention to introduce legislation clarifying that brand advertising is out of scope of the Regulations' restrictions, which will help to clarify whether an ad identifies as an LHF Product (and therefore whether it falls under the restrictions).
The Government has not yet defined brand advertising, but has indicated that its goal is to ensure the Regulations are proportionate, balancing health benefits with the impact on businesses. Specifically, the Government intends for businesses to still have opportunities to promote their brands (without being subject to the restrictions) provided that their adverts do not identify an LHF Product.
Although this means that the restrictions will now be delayed from formally entering into force until 5 January 2026 so that the scope of brand advertising can be clarified, advertisers and broadcasters have in any event voluntarily committed to the Government to comply with the restrictions as if they are in effect from 1 October 2025.
However, the ASA has confirmed in a recent statement that it will not process or investigate complaints in relation to the restrictions until the law is in place after 5 January 2026. The ASA is mindful that the legislation will have an impact on its rules and guidance, and so has put its work relating to its further consultation (noted above) on hold.
We will monitor and update on developments in this area.