We’re nearly seven months into the new food and drink advertising restrictions, summer’s in full swing and at the time of writing, the ASA’s ‘less healthy foods’ rulings count sits at 15. We’ve done a stock take and summarised some key points below.  

In addition to existing restrictions on advertising food and drink products which are classified as high in fat, salt or sugar (HFSS), new restrictions on advertisements for ‘identifiable’ products which are classified as ‘less healthy foods’ (LHF) have applied since 5 January with the first ASA rulings landing in April. The Ad Code reflect the law and the restrictions are found in CAP Code rule 15.9 and BCAP Code rule 32.21.

LHF products are those which meet HFSS criteria and fall into one of the legally defined categories. Advertisements for identifiable LHF products are banned from being advertised in paid-for space online at any time, or between 5.30am and 9pm on TV (and some on-demand programming).

Across the rulings we’ve had so far, determining whether a food or drink is an LHF or not is usually dealt with quite efficiently, because it’s an objective test. In most cases, the status of the food as LHF or not was undisputed, but one advertiser has already tripped up on the basis of a miscalculation under the nutrient profiling model.

The question of whether or not the advertisement is for an identifiable LHF or comes under the ‘brand advertisement’ is where the assessments start getting more involved.

Determining what is being advertised: Subject and object of the ad

Online banner ads which showed images of confectionery available for sale from a supermarket were investigated. ‘Confectionery including chocolates and sweets’ is one of the categories for food which is 'less healthy' and all the products shown met the HFSS criteria. Therefore, the ad was for identifiable LHF and breached rule 15.9. The ad showed a selection of foods which were not restricted by 15.9 but this didn’t stop the confectionery being identifiable and the ad being ruled in breach. 

Similarly, a paid-for Instagram ad which featured images of two non-LHF products and a chocolate Easter egg was in breach of the restriction because the easter egg met the criteria for HFSS and came under the category of ‘Confectionery including chocolates and sweets’.

An ad for a kebab restaurant was ruled compliant, because the ASA considered that the identifiable products being advertised were not LHF. The advertiser provided calculations for the products featured (e.g. ‘a rice bowl with chicken’, and a ‘doner burrito’) which showed they did not fall within the classification of a ‘less healthy food’. 

It’s worth noting that the ASA also considered whether a soft drink which appeared in the ad was being advertised and ruled that its inclusion was incidental and that the ad was not for the product. The point would have been moot because the soft drink was not an LHF, but it’s a reminder to pay close attention to incidental inclusion. 

A TV ad which aired before 9pm for a famous fast-food chain featured people ordering food via the brand’s delivery service who only referred to products by name in the audio was ruled out of scope of the rule 32.21 restriction because none of the products named met the criteria to be LHF.  

The ASA has taken the view that the law underpinning the advertising restrictions did not differentiate by the type of business doing the advertising but by whether consumers viewing the ad could reasonably be expected to identify that the ad was for a less healthy food or drink product. 

Therefore, the fact that a TV ad was by a travel agency didn’t preclude the ASA from investigating a complaint made under rule 32.21 to decide if the TV ad was for an LHF because it featured a boy selecting a doughnut from a lounge buffet. The ASA ruled that consumers viewing the ad could not reasonably be expected to identify that the ad was for the doughnut. Instead, consumers would identify the ad as being for the perk of free airport lounge access. 

The straightforward exemption: Size

There is a global exemption to the LHF restrictions for small and medium enterprises. This means that companies with fewer than 250 employees only have to apply the previous HFSS restrictions. 

The ASA investigated complaints against paid search ads for products such as ‘Pistachio and Raspberry Cake’, ‘Golden Honey Slice Cake’ and ‘Sweet Treat Sundae Cake’ but found that the ads were not in breach of rule 15.9 because the advertiser provided evidence showing it had fewer than 250 employees. The same applied for a paid-for Instagram ad featuring a bubble tea product named ‘Hollywood Shake’. In both these cases, although the ASA commented on the fact that consumers would be able to identify the ads as being for the named product, it didn’t assess whether they were LHF, because the advertiser was an SME.

When calculating whether a business is an SME, the total number of employees at the franchisor as well as its franchisees will be taken into account. Therefore, a social media ad paid for by a restaurant franchisee was not covered by the SME exemption because there were more than 250 employees overall. The ads were ruled to be for identifiable LHFs and therefore breached rule 15.9.

The circuitous exemption: ‘Brand advertisements’

This means that an ad for a brand rather than a food would not be subject to the restrictions, even if that brand is well known for foods that meet the criteria for LHF. If an LHF product is identifiable in the ad, then it cannot be a 'brand advertisement'. This means that if advertisers wish to feature products in a brand ad and still come under the exemption, they need to take care that the ad either:

• Shows a specifically identified non-LHF product; or
• If the non-LHF product isn’t specified by name, it is visually distinguishable from the LHF products available.

A video on demand ad for a food delivery app which featured a food brand and an image of an unnamed burger, which was later confirmed as a non-LHF product, was ruled to be compliant under the brand exemption. This was because, although the ad didn’t say which burger it was, the image of the burger was visually distinguishable from all the burgers available (based on an assessment of buns, patty shape, presence of other ingredients).   

The same approach was taken for an ad for a promotion across a brand’s pizza range. The paid for online ad was ruled not to breach the CAP Code because the advertiser was able to show that the unnamed product featured was non-LHF and the ASA assessed it to be visually distinguishable from LHF products sold by the advertiser (based on an assessment of different products in terms of the variation of crusts and toppings across the range).

Conclusion: Keeping up with the regulatory landscape 

The volume of rulings in just seven months shows how quickly the regulatory landscape is moving and how consequential a miscalculation can be for any business advertising food or drink. If you'd like advice on how the LHF restrictions apply to your advertising activity, or want to understand how your products should be classified, get in touch with our food and drink regulatory team.