The Committees of Advertising Practice (CAP and BCAP) have launched a further consultation on its proposed Guidance on new rules restricting the advertising of “less healthy” food and drink products.

We previously commented on the proposed Guidance here. It sought to provide assistance to businesses on how to interpret the new ‘Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024’ which will take effect on 1 October this year.

The Regulations prohibit:

• the advertising of so-called ‘less healthy’ food and drink products on Ofcom-licensed TV services and Ofcom-regulated on-demand programme services between 17:30 and 21:00; and
• paid-for advertising for less healthy products aimed at UK consumers from being placed on online media at any time.

Having consulted upon and published its initial Guidance on the Regulations, BCAP, CAP, the ASA, and Ofcom together decided to launch a second consultation due to concerns that one section in particular required revision. This related to advertisements which do not explicitly feature or refer to less healthy products.

As originally drafted, the Guidance stated that “the less healthy product rules apply only to advertisements where a specific product is identifiable as opposed to those that lead people to identify a range of products” and that “only imagery or other representations of a specific less healthy product that are sufficiently prominent and that people in the UK can reasonably be expected to identify as being for a specific less healthy product, as distinct from potential variants of that product, will result in an advertisement being subject to the rules”.

According to the Guidance as originally drafted, imagery or other representations of ‘generic products’ would be unlikely to fall within the scope of the Regulations. Similarly, it stated unequivocally that “where a piece of branding relates to a range of products, the less healthy product rules do not apply”.

A number of those who responded to the initial consultation pointed out that references to ‘ranges’ and ‘generic’ imagery was absent from the Regulations, and therefore questioned why the Guidance treated these differently from advertisements for identifiable less healthy products.

CAP and BCAP sought independent legal advice on this matter which concluded that whether an advertisement fell within the scope of the Regulations turned on whether “persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisement as being for” a less healthy product or products. Accordingly, it continued, “where an ad is for an ‘identifiable less healthy food or drink product’, as reasonably understood by persons in the United Kingdom (or any part of the United Kingdom), the fact it might also be characterised as “brand advertising” will not preclude the less healthy product rules from applying to it”.

As a result, CAP and BCAP have proposed changes to its Guidance “to remove unduly categorical statements, such as ‘Where a piece of branding relates to a range of products, the less healthy product rules do not apply’”. Instead, in the words of the consultation, the new version is “more circumspect and qualified in relation to ads that do not explicitly feature or refer to products”.

The consultation on the proposed changes of the Guidance will be open until 18 March 2025 and more information can be found here.