From 1 October 2025, any ads for "less healthy" foods will be banned from TV before 9pm and there will be a complete ban online.  The Communications Act 2003 (as amended by the Health and Care Act 2022) sets out that the restrictions will apply to adverts for "identifiable" less healthy food or drink products. "Identifiable" means if persons in the UK could reasonably be expected to be able to identify an advert as being for a less healthy product(s).

It was thought that pure brand advertising would be permitted, because of the reference to "identifiable" less healthy food products. So a company well known for manufacturing foods that come within the new rules could still advertise healthier products from their range, or create pure brand advertising.

CAP and BCAP set the cat among the pigeons when they announced that they were re-consulting on their draft guidance.  They said that they had received legal advice that said that the law didn't specifically refer to a brand exception, so pure brand advertising might be caught. This wasn't in line with eg the sugar tax, where the idea was that manufacturers would reformulate their products to be healthier.

The government has now clarified its position in a written statement to the UK parliament. 

It accepts that it is for a court to interpret the legislation.  But it says that its view is that pure brand advertising does not come within the scope of the new rules. This is because the legislation only restricts adverts that could reasonably be considered to be for identifiable less healthy products, and not adverts that could be reasonably understood to be advertising brands. 

It says that businesses will still have opportunities to promote their brands, provided that their adverts do not identify a less healthy product(s). For example, brands could promote their non-product attributes, such as corporate social responsibility commitments or customer experience, or advertise healthier products within their portfolios. It does not expect the perception or association of a corporate brand with less healthy products to automatically bring an advert into the scope of the restrictions. The government does not intend to prevent brands from advertising but instead intends to give businesses an incentive to innovate and create healthier products.

While the ASA and Ofcom act independently of the government, it said that it anticipates that they will want to act quickly and firmly on any obvious breaches of the law where a less healthy product is clearly identified in an advert. However, it believes that the law provides considerable discretion in how the available enforcement tools can be used positively to support a business to move to compliance over a period of time.

The ASA will finalise its implementation guidance following consultation.  It will be of interest to see if it amends its second draft to reflect the government's viewpoint.  If not, the government may need to make a change to the law.