Last month, we highlighted that (B)CAP had decided to rethink its draft guidance on "less healthy" food and drink products in the context of the new restrictions coming into force in October. As a recap, the less healthy product advertising rules will prohibit ads for "identifiable" less healthy products from being included in Ofcom-regulated TV services and on-demand programme services between 5:30am and 9:00pm, and from being placed in paid-for space in online media at any time.

(B)CAP consulted in late 2023, but indicated last month that it was rethinking aspects of the guidance, particularly brand advertising.  It felt that it needed to better reflect the law; in particular, with regard to how ads that do not include direct references to food and drink products, might still fall into the scope of the new legislation if the use of branding or other content deems the ad to be for an "identifiable" less healthy product (or products). 

(B)CAP has now issued a new consultation. So, what does it say and what could it mean for advertisers?

What is "identifiable"?

The crux of the matter is determining the meaning of "identifiable".Under the legislation, a product is identifiable, in relation to advertisements, if people in any part of the UK could reasonably be expected to be able to identify the ad as being for that product. However, the ASA is likely to have primary regard to the content of an ad when assessing how people perceive it.

A generic depiction of a burger or a bag of crisps might be caught depending on the overall presentation. And the ASA will consider if including brand logos, names and other distinguishing characteristics would lead people to identify the product. Retailers should note that the guidance considers that basket of goods comparisons including less healthy products are caught.

The restrictions can also apply to advertising that does not explicitly depict or directly refer to a specific less healthy product, if people in the UK could reasonably be expected to identify the ad as being for an identifiable less healthy product.

As per usual practice, the ASA will not assess an advertisement based on the advertiser's likely or expressed intent. It will objectively assess the advertisement's content and context, and how the ad is likely to be perceived.

Whether or not an advertisement is within scope of the rules will therefore depend on the specific circumstances of each case, from the full content of the advertisement to the wider context of the advertiser placing it. This could be a challenging path to navigate, especially for suppliers of both less healthy and non-less healthy products.

Crucially, where the advertiser is strongly associated by persons in the UK with the manufacture or sale of a less healthy product or a range of less healthy products, the use in an advertisement of a generic representation of that product or products in a way that is likely to bring to mind that product(s) would increase the probability of the advertisement being restricted.

The ASA's purported position seems contrary to the government's original intent to exempt brand advertising from the rules. The ASA's interpretation of the legislation could mean that brands irrevocably pigeonholed as synonymous with less healthy products now have less incentive to reformulate and move towards offering healthier products.

HFSS advertising rules still apply

Advertisers should also remember that where the less healthy product rules do not apply, advertisements for HFSS products must comply with the existing rules on HFSS advertising. These restrict the media environments where HFSS advertisements can appear and, if they are allowed, control the content of such advertisements, including by limiting their appeal to children.

The consultation ends on 18 March 2025.