This update explains where we are in finalising the guidance for implementing the new restrictions, the next steps in the consultation process and expected timelines to bring our work to a conclusion.
Background
Ofcom is the statutory regulator of the new restrictions and has appointed the Advertising Standards Authority (ASA) as its frontline advertising co-regulator.
On behalf of the ASA, the Committees of Advertising Practice (CAP) consulted on rules and guidance to implement provisions in the Communications Act, 2003 (the Act), which will, from October 2025, ban 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 (“ODPS”) between 5:30am and 9:00pm; and
placed in paid-for space in online media at any time.
These restrictions are subject to several specific exemptions; principally, for small or medium enterprises. Details of the exemptions are set out in the Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024, which were published on 3 December 2024.
Products within scope are determined via a two-stage test: that the product meets the criteria of the Department of Health and Social Care (DHSC) 2004-2005 nutrient profiling model, and is also within one of the categories set out in the schedule to the above Regulations. DHSC has published guidance to help stakeholders understand what products may be in scope of the restrictions.
The response window for CAP’s consultation closed on 7 February 2024.
What is the latest in finalising the guidance?
Consultation invites views from interested parties in order that the consulting regulator can consider as broad a range of responses as possible to its original proposals. In this case, the consultation process has caused us to rethink and potentially revise aspects of the guidance we consulted on.
The guidance we proposed continues to offer, for the most part, appropriately qualified advice to support affected advertisers and media to apply the restrictions. But, based on legal advice to support our evaluation of consultation responses, CAP (supported by the ASA and Ofcom) now considers that some parts of the proposed guidance are likely to require revision, particularly parts relating to brand advertising (used here to mean advertising by brands that does not explicitly refer to or feature products).
For example, 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. This, and other similar parts of the guidance, were based on an understanding of how the restrictions were likely to apply based on the legislation, having appropriate regard to Government statements such as “brand advertising [can continue to advertise]… provided there are no identifiable HFSS products in the adverts”.
However, as a result of consultation responses and further legal advice, we now consider that the guidance should be more circumspect in this regard. The law itself makes no reference to brand advertising. Rather, the law applies media bans to ads for an identifiable LHF product and, importantly, explains that a product is identifiable in relation to advertisements if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that [LHF] product. THIS is the test that affected advertisers and media need to consider when planning ahead for the implementation of the restrictions from October 2025. And, because no contrary indication is provided for in the Act, we understand reference to “that product” also has the meaning of “those products.”
So, for advertisers, our 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 persons 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 your ad actually would be restricted will be a question of fact and judgment in each case, which no guidance can conclusively determine – as is the case with most aspects of advertising regulation. You should therefore consider carefully the specific content and media placement of your individual ads, and take appropriate account of the wider context, including your overall product and service offering, to assess whether your ad is likely to meet the test for the restrictions to apply.
Our revised guidance will also likely clarify that it will not be possible for guidance to state in the abstract – in the absence of a full assessment of the specific content and context of an individual ad – whether ads from particular brands will fall definitively within or outside scope of the restrictions. This will hinge on whether the individual ad meets the test.
We are now, therefore, preparing revised guidance to better support affected advertisers and media to help them to make informed judgments about whether an ad would be likely to be restricted.
What processes need to be gone through between now and the final guidance being produced, and what are the expected timelines?
CAP is now preparing a revised version of the guidance, which we will propose via a further process of public consultation in the coming weeks, barring any unforeseen developments. We will again provide a window for consultation responses, which balances the need to publish the final guidance at the earliest opportunity with the need to give stakeholders an appropriate opportunity to consider and comment on our evolving proposals.
Following our evaluation of the consultation responses, we will work with Ofcom and the ASA to complete the governance process. In accordance with the Act, this must involve consultation with the Secretary of State. We aim to publish the final guidance in the spring, again barring any unforeseen developments.
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