Advertising restrictions of HFSS Foods

HFSS Food and Advertising – Consultations

The UK Government has formulated final policy for introducing secondary legislation with regulations restricting advertising for specified HFSS products on TV and online.  The consultation on this will end 31 March 2023.Introducing further advertising restrictions on TV and online for products high in fat, salt or sugar: consultation on secondary legislation - GOV.UK (www.gov.uk)

The Health and Care Act 2022 inserted new sections into the Act which:

• prohibit television programme services provided between 5.30am and 9.00pm from including advertisements for identifiable HFSS products (section 321A)
• prohibit all on-demand programme services (ODPS) regulated by Ofcom, provided between 5.30am and 9.00pm, from including advertisements for identifiable HFSS products (section 368FA)
• prohibit paid-for advertising of identifiable HFSS products online (section 368Z14)

The Health and Care Act 2022 (HCA) received Royal Assent on 28 April 2022. See section (172) and Schedule (18) for HFSS advertising restrictions in the Health and Care Act. (HCA)  Under the HCA, the new advertising restrictions were required to take effect from 1 January 2023. However, as announced in December 2022, the Government are delaying implementation of the policy, so that it comes into force on 1 October 2025.

Secondary legislation Introducing further advertising restrictions on TV and online for products high in fat, salt or sugar: secondary legislation - GOV.UK (www.gov.uk) is intended to be introduced to cover the following areas:

• defining the products in scope of the advertising restrictions
• defining food and drink small and medium-sized enterprises (SMEs) for the purposes of the SME exemptions
• defining services connected to regulated radio for the purposes of section 368Z14(3)(c) to ensure that the exemption for radio services – which are outside the scope of the prohibition – covers online services provided by commercial and community radio broadcasters

Products in Scope

Food products are in scope if they fall within the 13 product categories set out in legislation, including soft drinks with added sugar, savoury snacks, biscuits, breakfast cereals, ice cream, cakes, desserts and puddings, pizzas, sweetened yoghurts, ready meals and sandwiches. The food must then score a 4 or above for food – and 1 or above for drink – when applying the 2011 technical guidance to the 2004/2005 Nutrient Profile Model to be considered ‘less healthy’. Information on the nutrient profiling model is available on the Department of Health and Social Care's website here. The nutrient profiling model - GOV.UK (www.gov.uk)The nutrient profiling model - GOV.UK (www.gov.uk)

Further guidance is set to be issued which is expected to be in line with the existing guidance provided for the promotion and placement restrictions.

Business in Scope.

Exemptions exist for business to business marketing, adverts which are not intended to be accessed principally by people in the UK, and advertising by small and medium sized enterprises (SMEs).

‘Food or drink SME’, will be defined as businesses with 249 employees or fewer. This definition will also outline that a company’s number of employees internationally count towards their total number of employees and that franchises are treated as part of the franchisor business and not as a separate business.

Further exemptions

A number of exemptions also apply for regulated broadcast radio and audio-only content online, such as podcasts and internet-only radio services, where services are not regulated. However, audio advertising that has a visual component is in scope of the restrictions. 

The Ofcom consultation

Ofcom’s consultation focuses on amendments to the UK Code of Broadcast Advertising BCAP Code and Ofcom’s Broadcasting Code Published in February the consultation closes on 21 April 2023 Consultation: Regulation of advertising of less healthy food and drink (ofcom.org.uk)

Insight/Commentary

The raft of ‘Obesity Strategy’ legislation was introduced by Boris Johnson and has a number of these  measures have been postponed as consumers struggle with a cost of living crisis and businesses already constrained by inflation and supply chain difficulties have been given extra time to grapple with understanding the products that are within scope; ie A ban on multi-buy offers for HFSS foods, including buy one get one free (BOGOF) and three for 2 offers, will now come into force in October 2023.

Whilst obesity and the NHS remains high on the agenda, the popular consensus for further legislation on a beleaguered food sector may have diminished. However, as this is a restriction on advertising it may be seen as less politically  problematic; ie rather than measures which may serve to increase costs to the consumer, such as further costs associated with calorie pricing on point of sale ie menus, in the Calorie Labelling (Out of Home Sector) (England) Regulations 2021 that came into force in April 2022. 

It should however constantly be queried if additional restrictions are justified and if they will actually achieve the objectives they intend. Otherwise this is further red tape on business rather than actual measures for education and the NHS to help fight obesity.

The UK advertising sector is no less worthy of support than food and hospitality and we in the UK already live with extensive codes of practice and legislation on what and how can be claimed about food and drink. Also, why shouldn't larger British food producers be able to promote their products during the daytime rather than be hampered by a 2011 nutrition model that does not look at the entire diet of consumers?

This may also be seen within the context of the Scottish consultation on restricting advertising of alcohol that closed on 9 March 2023 Alcohol advertising and promotion - Scottish Government - Citizen Space (consult.gov.scot)  The regulation changes would include a ban on sponsorships for sport and live events, and distillery and brewery shops also barred from selling branded merchandise to visitors.

An open letter has been signed by nine organisations including the Advertising Association, the Incorporated Society of British Advertisers (ISBA) and the Institute of Practitioners in Advertising (IPA).  The letter states: “Whilst we understand the Government’s desire to reduce alcohol consumption harms in Scotland, there is no evidence that advertising bans will achieve that aim.”

The GMB Scotland Union representing workers in the alcohol industry in Scotland have joined stating “While the consultation is well-intentioned, an alcohol advertising ban will inevitably be detrimental to jobs across the sector and its supply chains.”

Both the Scottish proposal and the England consultations further raise a question mark for unintended consequences on the follow on effects of any restrictions in sponsorship on a variety of sporting and other events. Alternative sponsors may need to be sought and both areas affected will need to assess their long term advertising strategy.