CAP to revise LHF guidance over lack of clarity on brand advertising

The Advertising Standards Authority (ASA) and Committee of Advertising Practice (CAP) are planning to revise their guidance related to the forthcoming advertising ban on less healthy food and drink (LHF) over a change in the legal interpretation of what is likely to qualify under the passed legislation.
Chiefly, brand advertising — defined as “advertising by brands that does not explicitly refer to or feature products” — was previously thought to fall outside the scope of restrictions. CAP has now signalled that even if an ad does not explicitly refer to or feature an LHF — previously more commonly known as foods high in fat, sugar or salt (HFSS) — product, it may still be restricted.
Final guidance is likely to be published in the spring. Legal restrictions will come into force from 1 October.
Under the Health and Care Act, which became law on 28 April 2022, the rules will prohibit TV services as well as on-demand services from including advertising and sponsorship for LHF products between 5.30am and 9pm. LHF ads will be banned from being aimed at online UK users at all times.
Interpreting ‘poorly drafted’ laws
The ad restrictions were originally planned to come into force on 1 January 2023, but were later postponed multiple times to 1 October 2025.
In the King’s Speech last summer, the only direct mention of advertising was to lay out the government’s intention to “legislate to restrict advertising of junk food to children along with the sale of high-caffeine energy drinks to children” — a continuation of a Conservative-led effort to restrict LHF advertising through supplemental legislation.
In September, the government published a response to a 2022 consultation on such secondary legislation, which is intended to delineate greater specificity of what will and will not be allowed under the law. Such secondary legislation failed to pass during the previous government’s wash-up period in May, much to the chagrin of stakeholders and advertisers planning their media budgets for 2025.
Indeed, trade bodies have been lobbying the government to urgently clarify the language of the law and pass such legislation, arguing that wording in the Health and Care Act was too open to interpretation.
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Christie Dennehy-Neil, head of policy and regulatory affairs at digital advertising trade body IAB UK, expressed surprise about CAP’s update on brand advertising. She noted: “It has always been the intention that brand advertising would be out of the scope of the ban, as the government confirmed repeatedly when pressed by industry to reword the legislation for the avoidance of doubt.”
Prior guidance from CAP was based on the legislation and “appropriate regard” for government statements such as “brand advertising [can continue to advertise]… provided there are no identifiable HFSS products in the adverts”, published in 2021.
Now, CAP considers the guidance “should be more circumspect in this regard”, because the law itself makes no direct 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 UK (or any part of the UK) could reasonably be expected to be able to identify the advertisements as being for that product,” a statement from CAP reads.
“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’.”
Dennehy-Neil argued that the government’s “failure” to amend the legislation “means that ASA and CAP are now faced with the challenging task of interpreting laws that are poorly drafted to give proper effect to the policy intention”.
Richard Lindsay, director of legal and public affairs at agency trade association IPA, agreed and called the delay in the publication of CAP’s guidance “very frustrating for all concerned”.
“This statement by CAP demonstrated the very difficult position in which they have been placed because of ambiguous legislative drafting and mixed messages from government,” he continued.
Spanner in the works
The delivery of guidance from the ASA and CAP at an unspecified date in the spring (“barring any unforeseen developments”, CAP added) is likely to frustrate marketers looking to draft media plans and develop ad creative ahead of the autumn. Given the high degree of consumer spending that occurs in Q4 each year, such planning is usually tackled earlier in the year.
But for brands with LHF products, it may be highly challenging to plan marketing activity until it’s clear what types of ads are allowed to run.
“We will have to wait until the final guidance is published — potentially in the spring — before being able to see how the ASA is likely to interpret ads under the new rules,” said Lindsay. “Until then, advertisers, agencies and the media will be unable to plan and manage relevant campaigns with any certainty.”
Dennehy-Neil added that the industry “needs urgent clarity about how the ban will work in practice”.
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In its latest update, CAP added that the revised guidance is also unlikely to specify “whether ads from particular brands will fall definitively within or outside scope of the restrictions” generally. This is because this decision will depend on a “full assessment of the specific content and context of an individual ad”.
CAP has confirmed that there will now be a further process of public consultation in the coming weeks before publishing the final guidance.