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 2025.
Restrictions on advertising of HFSS products
What are the existing rules on advertising HFSS 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 - there are currently no placement restrictions specific to broadcast media.
How are things changing?
New restrictions have been introduced through the Health and Care Act 2022, which received Royal Assent on 28 April 2022 and inserted new sections into the Communications Act 2003. These:
- Introduce a 21:00 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.
The new restrictions were originally planned to come into force in January 2023. The enforcement date was originally postponed to 1 October 2025, and has since been further postponed to 5 January 2026, to account for further clarification on the drafting of relevant statutory instruments, particularly in relation to the brand advertising exemption (see below).
Despite the latest delay, industry players have voluntarily committed to observing the 1 October 2025 start date, although the House of Lords Secondary Legislation Scrutiny Committee has deemed this self-imposed compliance ultimately unenforceable.
What products are in scope?
As part of the implementation process, the government has drafted the Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024, which apply from 5 January 2026 and set out further details on the product categories and businesses in scope of the new restrictions.
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 4 or above for food and 1 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 listed in paragraphs 2 to 17 of the Schedule to the 2024 Regulations. There are 13 categories. We don't cover these categories here.
What are the exemptions?
There are a number of exemptions to the restrictions. These include the following.
Brand advertising
The legislation doesn't specifically refer to a "brand exemption", but the ad restrictions only apply to ads for "identifiable" HFSS products. A product is "identifiable" if people in the UK could reasonably be expected to be able to identify an ad as being for a less healthy product.
It was originally thought that pure brand advertising (which does not identify a less healthy product) would not be caught by the restrictions. However, this was thrown into doubt earlier in 2025 after CAP and BCAP announced that they had received legal advice that pure brand advertising might be caught by the ad restriction.
The government responded by publishing a draft secondary regulation to resolve the issue. On 10 September 2025, the Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025 were laid before Parliament and will come into effect on 31 October 2025.
This secondary legislation includes a specific exemption for brand advertising, provided the advertising promotes a brand (including the brand of a range of products that vary in more than just pack size and packaging). The exemption is subject to some important limitations.
The categories below illustrate where the brand exemption does not apply, and so the ad restrictions must be adhered to:
- where the ad depicts a specific less healthy food or drink product ("depict" is defined broadly and non-exhaustively and includes imagery, text, audio cues, jingles and brand characters)
- where the ad promotes a brand whose name is also the name of a specific less healthy food or drink product
- where the ad contains a realistic image of food or drink which shows the product itself, not just its packaging, which is visually indistinguishable from a specific less healthy product.
However, regarding the seond bullet above, using an HFSS product name (including in a logo) is permitted if that name was established before 16 July 2025 (the date on which the draft statutory instrument was published for consultation) as either the name of a commercial entity or as a brand name used for a range of products. This historical protection qualifier was designed to ensure companies are not penalised because of the historical evolution of their brands – and to give latitude for pre-established brands to pivot towards healthier offerings.
The secondary legislation is accompanied by an Explanatory Memorandum which explains that advertisers should first check if their advertising is caught by the ban. Most brand advertising is expected to fall outside the scope of the ban.
Other exemptions
There are also exemptions from the restrictions for SMEs, audio content only available online (such as podcasts and music-only streaming services), broadcast radio, online business-to-business promotions and advertising, online transactional content and owned media (the latter 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".)
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.
How will the new restrictions be enforced?
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.
The ASA is still in the process of developing implementation guidance which will set out how it will enforce the restrictions on HFSS advertising, having originally consulted on guidance in 2023, and published draft implementation guidance in 2025 after some revision (which then led to the debate around the brand-only exemption).
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.
Restrictions on promotion and placement of HFSS products
What about promotion and placement of HFSS products?
The Food (Promotion and Placement) (England) Regulations 2021 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 platers, 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.
What qualifying businesses are in scope?
The restrictions in the Food Regulations apply to medium and large businesses (with 50 employees or more) offering prepacked food for sale in store and/or 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.
How will the Food Regulations be enforced?
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 of £2,500 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.
What are the restrictions on placement?
The restriction of HFSS products by location in the Food Regulations 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:
- 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.
What are the restriction by volume price?
The restriction of HFSS products by volume price in the Food Regulations is due to come into force on 1 October 2025. They were subject to a delay 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 (or any part of it) is free (eg buy one get one free, 50% extra 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, Emma Simms or your usual Taylor Wessing contact.
