The past few years have seen the government introduce new rules which seek to restrict the promotion, placement and advertising of food and drinks that are high in fat, salt or sugar (HFSS). They seek to tackle the issue of childhood obesity and prioritise children's health by reducing children's exposure to HFSS products in physical stores, on TV and online.

Some of these new restrictions are now in force but others have been delayed because of factors including rising food prices and cost of living pressures.

In this article we provide an overview of the new rules and their status as of September 2023.

Restrictions on advertising of HFSS products

Reminder of the existing rules under CAP and BCAP

The CAP and BCAP codes on advertising in non-broadcast and broadcast media respectively already contain rules on marketing directed at children and on nutritional claims made in food and drink adverts. 

In non-broadcast media, rules prevent HFSS products from appearing in media specifically directed at anyone under 16, or where under-16s make up more than 25% of the audience. 

For broadcast media, the rules focus largely on content and there are currently no placement restrictions specific to broadcast media.

New restrictions

The new restrictions on the advertising of HFSS products were originally planned to come into force in January 2023. They were postponed for a year and have now been further delayed until 1 October 2025.

The rules have been introduced through the Health and Care Act 2002, which received Royal Assent on 28 April 2022 and inserted new sections into the Communications Act 2003 which:

• Introduce a 9pm TV watershed for HFSS products. This will apply to all TV programmes, regardless of programming or typical audience age. It will include all on-demand programme services (ODPS) under UK jurisdiction and regulated by Ofcom.
• A restriction on all HFSS paid-for advertising online. This will include non-UK regulated ODPS.

As part of implementing the restrictions, the government plans to bring forward secondary legislation which will set out further details on the product categories and businesses in scope.

What products are in scope?

There is a two-stage approach where (to be in scope of the restrictions) a product needs to fall into a relevant product category and then score four or above for food and one or above for drink when applying the 2011 technical guidance to the 2004/2005 Nutrient Profiling Model. (The NP Model was developed by the Food Standards Agency in 2004-2005 as a tool to help Ofcom differentiate foods and improve the balance of television advertising to children.) 

The product categories in scope are outlined in Annex 1 of the government's consultation guidance and will be set out in secondary legislation.

Exemptions

There are a number of exemptions to the restrictions. These include:

• Brand advertising, provided there are no identifiable HFSS products in the adverts. This is to ensure brands are not pigeonholed as synonymous with HFSS products and have the freedom to move to healthier offerings.
• Owned media, to ensure that brands are able to talk about their products in the spaces they own. Owned media is "any online property owned and controlled, usually by a brand. For owned media, the brand exerts full editorial control and ownership over content; such as a blog, website or social media channels";
• SMEs (to be defined in secondary legislation).
• Audio content only available online (podcasts, online radio). The government is also seeking views on whether the secondary legislation should provide for an exemption for audio-only media to cover other non-broadcast radio services that are carried online including UK-based internet radio services.
• Broadcast radio.
• Online business to business promotions or advertising.
• Online transactional content.

Who is liable for a breach of the rules?

• Broadcasters and ODPS under jurisdiction will be liable for breaches of the TV watershed.
• Advertisers will be liable for breaches of the paid-for online advertising restriction.
• For non-UK ODPS, the advertiser will be liable for breaches of the online HFSS restriction.

This approach aligns with existing enforcement frameworks across TV, online and ODPS advertising.

Enforcement

Ofcom will be the statutory regulator and has designated the ASA as a co-regulator. The ASA is required to update the CAP Code to ensure that advertisers comply with the online prohibition; it will also produce guidance on the online prohibition.

The existing co-regulatory arrangements between Ofcom and the ASA for TV and on-demand advertising will extend to the new restrictions in these media.

The ASA is required to update the CAP Code to reflect the ODPS watershed restriction. The BCAP Code and the Broadcasting Code will also be amended to reflect the new restrictions that apply to broadcast advertising.

Ofcom retains statutory backstop powers for all prohibitions. Where there has been a failure by an advertiser to co-operate with the ASA and/or comply with its decisions, the ASA can refer the matter to Ofcom to consider whether to exercise its statutory powers. These include Ofcom's powers to investigate and take enforcement action against an advertiser for a breach of a relevant requirement, such as issuing enforcement notifications or imposing financial penalties or other statutory sanctions.

Food (Promotion and Placement) (England) Regulations 2021

The Food Regulations provide for restrictions on the promotion and placement of HFSS products in physical stores and their online equivalents.

What products are in scope?

The products in scope of the Food Regulations are very similar to those captured by the new advertising restrictions described above.

However, there are four categories of out-of-home products which are not included in the Food Regulations. These are main meals, starters, sides and small plates, children's meal bundles, and sandwiches.

The government decided that promotions in the out-of-home sector and meal deals should not be in scope as offers for these are generally targeted to multiple individuals eating out together as a group and it is not the aim of the Food Regulations to make it more expensive for families to eat out.

Qualifying businesses in scope of the regulations

The restrictions apply to medium and large businesses (with 50 employees or more) offering prepacked food for sale in store and online.

Some businesses are exempt, including the out-of-home sector (even if they sell prepacked HFSS food and drink) – however, free refills of sugary drinks in the out-of-home sector are subject to volume price promotions restrictions.

Specialist retailers are also exempt from location restrictions but must comply with volume price promotion restrictions.

Enforcement

Businesses in scope of the regulations that promote food in scope in a way that does not meet the requirements of the legislation will be liable to enforcement action unless an exemption applies. Failure to comply with regulations may result in a business being issued with an improvement notice and subsequently a fixed monetary penalty if compliance is not achieved as required.

It is possible there may be overlap with the new advertising restrictions, for example, if a company has paid for advertising of an identifiable HFSS product displayed in an area restricted under the Food Regulations (eg on a retail homepage). In such a scenario the retailer will be liable for a breach of the Food Regulations and the advertiser may also be liable for breaching the advertising regulations.

Restriction of HFSS products by location

The restriction of HFSS products by location came into force on 1 October 2022. It had faced a legal challenge by Kellogg's but this was dismissed by the court in July 2022 and not appealed by Kellogg's.

The regulations prohibit qualifying businesses from placing specified food in key locations (checkout facilities, queuing areas, aisle ends and store entrances) when retail stores are over 185.8 square metres (or 2,000 square feet). They also apply to the equivalent key locations online, including:

• Homepage of a website
• When a consumer is searching or browsing for non-HFSS products
• While a consumer is searching for or browsing for distinctly different HFSS foods
• On a page not opened intentionally by the consumer (e.g. a pop-up page)
• On a 'favourite products' page, including 'recommended for you' pages, unless the consumer has previously purchased the specified food or intentionally identified it as a favourite product.

Some taxonomy tabs on a retailer's website that are dedicated offer pages are not restricted locations under the regulations.

Restriction of HFSS products by volume price

The restriction of HFSS products by volume price are due to come into force in October 2025. They were subject to a delay and this has now been extended to allow the government to continue to review the impact of the restrictions on consumers and businesses. The government's rationale for the continued postponement is to help consumers cope with rising food prices and current cost of living pressures.

Businesses in scope of the regulations must not offer volume price promotions on food in scope of the regulations. 'Volume price promotion' means either a multibuy promotion (eg 3 for the price of 2) or a promotion that indicates that an item is free (eg buy one get one free).

Offers commonly referred to as ‘meal deals’ or ‘dine in for 2’, where foods are promoted as intending to be consumed together, are out of scope of volume price promotion restrictions.

Discount promotions such as ‘50% off’, ‘half off’ or ‘save £1’ are out of scope of this policy. Free samples or vouchers for free products are also not in scope of the volume price promotion restrictions.

For more on the impact on your business, contact Simon Jupp or your usual Taylor Wessing contact