In case you missed it, CAP issued an update about its consultation (which ended on 7 February 2024) on its rules and guidance on the ban of ads for "identifiable" less healthy food and drink products (LHF) from being:

• included in Ofcom-regulated TV services between 5:30am and 9:00pm;
• included in Ofcom-regulated on-demand programme services between 5:30am and 9:00pm; and
• placed in paid-for space online at any time.

CAP has indicated that the consultation process has caused it to rethink and potentially revise aspects of the guidance, particularly brand advertising.  This is advertising by brands that does not explicitly refer to or feature products so might be an ad which includes a reference to a brand which is well known for selling LHF products as defined in the legislation, but doesn't actually depict or advertise the food itself.

In particular, the proposed guidance advised, with qualifications, that ads that feature branding that relates to a range of entirely "less healthy" products would fall outside the scope of the restrictions if there were no depictions or references to a specific less healthy product in the ad. 

However, the law itself makes no reference to brand advertising. CAP has now said that the revised guidance is likely to clarify that – even if your ad does not explicitly refer to or feature an LHF product – it may still be restricted under law, where people in the UK could reasonably be expected to be able to identify your ad as being for an LHF product or LHF products. 

Whether or not an ad actually would be restricted will be a question of fact and judgment in each case and will depend on the specific content and media placement of an ad, and take appropriate account of the wider context, including the advertiser's overall product and service offering, to assess whether the ad is likely to meet the test for the restrictions to apply.  

Therefore, CAP is preparing revised guidance and intends to consult on it in the coming weeks.  It will then work with Ofcom and the ASA as well as consulting with the Secretary of State, as required by the legislation.  The aim is to publish the final guidance "in the spring".