In brief
- Since restrictions around "less healthy" food and beverages came into force on 5 January 2026, the ASA has published a series of rulings applying the new rules in relation to a range of adverts across food retail, quick service restaurants, delivery platforms and confectionery.
- The ASA's rulings establish that the brand advertising exemption requires systematic preparation: advertisers must confirm the High in Fat, Salt, or Sugar (HFSS) status of every product depicted and map their full product range to identify any HFSS variant that could be visually indistinguishable from the product shown in the ad.
- Meanwhile, brand characters and mascots carry their own distinct risk. A stylised cartoon character can constitute a depiction of a specific HFSS product through shape and colour alone, without any realistic food imagery, disapplying the brand advertising exemption.
- Franchise networks face particular exposure. While SMEs are exempt from the restrictions, employee headcount is aggregated across the franchisor and all franchisees for the purposes of the SME exemption, meaning many franchise businesses cannot rely on the exemption. Franchisors should treat paid social media activity by individual franchisees as a live compliance risk and consider implementing pre-approval processes.
Earlier this year, new advertising restrictions on less healthy food and beverages came into effect, as we have previously discussed here. Under the restrictions, paid-for online advertising of identifiable "less healthy" food and drink products is prohibited, with equivalent restrictions applying on television and on-demand services before 9pm.
Since January 2026, a body of ASA rulings has emerged, illustrating how the rules are being applied in practice. Three themes emerge most clearly from the decisions.
1. Brand advertising: a limited exemption to the rules
The brand advertising exemption permits an advertisement that promotes a brand or a range of products to run online without engaging the restrictions, provided the ad does not depict a specific less healthy product by name, image, character or other branding technique, and does not include a realistic image of food that is visually indistinguishable from a specific HFSS product. The exemption is available only where the advertiser can demonstrate that nothing in the ad points consumers to a particular HFSS product.
The ASA was asked to consider a paid Instagram ad for M&M's featuring the round green and oval yellow M&M's cartoon characters, with no realistic food imagery and no product name included beyond the brand. Mars argued that the characters were anthropomorphised mascots, not depictions of food, and that therefore the brand advertising exemption applied. The ASA disagreed, at least in part. It found that the oval yellow character depicted Peanut M&M's specifically, because Peanut M&M's is the only variant with oval-shaped lentils, and all Peanut M&M's packaging uses yellow as the dominant colour. The combination of shape and colour was enough to make the character a "personification" of a specific HFSS product, displacing the exemption. By contrast, the round green character was not problematic, because multiple M&M's variants have round lentils, meaning it could not be said to represent any one product specifically.
The ruling goes significantly beyond confectionery. It suggests that brand characters, mascots and visual devices closely associated with a specific HFSS product carry regulatory risk in paid online advertising, even where no food is depicted realistically and the character appears across a wide range of brand communications. Crucially, the test is not whether the advertiser intends the character to represent a product, but whether consumers could reasonably identify it as doing so. Advertisers with established mascots or visual brand devices should map their characters against the product-specific shape and colour combinations in their range, and consider whether any character's design is rooted in the physical characteristics of a specific HFSS product.
Conversely, in a McDonald's ruling, McDonald's successfully invoked the brand advertising exemption. A television ad for its McDelivery service featured no food imagery but named three specific menu items in the voice-over dialogue: Chicken McNuggets, a McCrispy and a McChicken Sandwich. Naming specific products in an advertisement constitutes a "depiction" of those products for the purposes of the Regulations and would remove the benefit of the brand advertising exemption unless those products are non-HFSS. In this case, all three named items had been confirmed as non-HFSS: that allowed the ASA to assess each product directly by name, without needing to consider visual indistinguishability from HFSS products. The complaint was therefore rejected. However, the same approach in an ad that names any HFSS product would be straightforwardly in breach.
The M&M's decision provides a useful counterpoint. Mars avoided naming any product and featured no food photography, apparently on the basis that the ad was supposed to be for the brand rather than any specific product. The ASA nonetheless found that the characters themselves identified a specific HFSS product. In the McDonald's ruling however, the ASA treated the references to "McDelivery" as relating to the overall McDonald's brand. Furthermore, the named products were all non-HFSS and because they were explicitly referenced by name only, the ASA did not draw its own inferences from any visual or design elements as to what they may depict.
2. Identifying specific menu items
The largest cluster of rulings concerns whether a realistic image of food in an ad is "visually indistinguishable" from a specific HFSS product. The ASA has developed a consistent three-step framework: (1) does the ad depict a specific HFSS product? (breach); (2) does it clearly identify a specific non-HFSS product by name? (not a breach); or (3) if neither, is the realistic image visually indistinguishable from a specific HFSS product? (potentially a breach).
In rulings involving Papa John's, Domino's, Uber Eats and KFC, the ASA conducted detailed side-by-side comparisons of the food depicted with the advertiser's full product range, looking at features at the level of granularity of specific toppings, crust profiles, number of patties, visible fillings and breadcrumb texture. In each case, the product depicted was non-HFSS, and all products that looked similar to it were also non-HFSS, so the ads were acceptable as brand advertisements. The analysis in each ruling is granular: distinctions turned on aspects such as whether cheese was visible in the cross-section of a sliced crust, whether a crust edge appeared rounded or flat, and the colour and texture of a breadcrumb coating. The level of scrutiny underlines that it is not enough to choose a non-HFSS product to feature and assume the ad will be compliant. The whole range must be reviewed.
In a separate Domino's ruling, Domino's had relied on a third party to provide nutrient profile data for its "Cheeky Little Pizza" range, but that data contained an error: the Sausage and Bacon variant was classified as non-HFSS when it was in fact HFSS. The ad depicted that pizza, and the ASA found it to be a specific HFSS product, meaning the ad was in breach. This was the case even though Domino's, Clearcast (the clearance centre for TV ads) and the broadcaster had all acted on the incorrect data in good faith. The ruling is a clear warning that liability follows the content of the ad as published, not an advertiser's intentions, and of the importance of accurate nutrient profiling. Advertisers that rely on third-party data for nutrient profiles should consider what verification steps they have in place and whether their contracts with data providers adequately allocate the risk of errors.
In an earlier decision involving German Doner Kebab, a notably disciplined approach had been taken, with GDK providing the influencer who posted an ad with a specific list of menu items he could and could not feature, all confirmed as non-HFSS. The complaint was not upheld. The same approach is available to any advertiser working with influencers or content creators, and the GDK ruling suggests it will provide a reliable defence where the briefing is properly documented.
3. Franchises and SMEs
Two rulings highlight a structural compliance risk for franchise networks and multi-site operators. In a ruling concerning the fast food franchise, Morley's, a franchisee posted an Instagram ad for HFSS meal deals without the franchisor's knowledge. The SME exemption (which applies to businesses employing fewer than 250 people) did not apply because, for franchise businesses, employee headcount is aggregated across the franchisor and all franchisees: Morley's as a whole employed more than 250 people. The individual franchisee's non-awareness of the HFSS rules was irrelevant to the outcome.
By contrast, Bubbleology successfully relied on the SME exemption, demonstrating that it employed 227 people across its corporate stores and franchise network at the relevant date. The ASA accepted month-end payroll data as sufficiently reliable for assessing headcount and the complaint was not upheld. The two cases together show that the exemption is workable for businesses that can evidence their headcount, but that the aggregation rule creates a real trap for growing franchise networks approaching the 250-person threshold. Franchisors should track headcount and treat paid social media activity by individual franchisees as a live compliance risk. Pre-approval of local advertising is the most straightforward safeguard, and the Morley's ruling suggests that notifying franchisees of the HFSS rules is unlikely to be enough on its own.
Practical takeaways
The picture from the first months of enforcement is that compliance is achievable but requires preparation and processes in place. Food and beverage businesses should confirm the HFSS status of every product depicted in or associated with any given advertisement, map their full product range to identify visually similar items, verify nutrient profile data independently, and review brand characters and visual devices against the personification test established in the M&M's ruling. Franchise operators should implement centralised approval for any paid social media activity by franchisees and keep a clear record of headcount. The rules apply to the content of the ad as published, so intent and good faith provide no defence; liability always falls on the advertiser.
If you would like to discuss the implications of these rulings and the new "less healthy" food restrictions, and how best to equip your business with an ad-compliant strategy, please contact our Advertising and Marketing team.