10th July 2025

Written by Rebecca Coleman.

The Bite-Sized Breakdown

New legislation, effective 5 January 2026, but with voluntary compliance from 1 October 2025, will further restrict advertising of foods high in fat, salt, or sugar (“HFSS”) with the introduction of a new category of “Less Healthy” food and drink products (“LHP”).  Advertising of LHP will be banned on TV (5:30am–9pm) and in all paid online ads targeting UK users. Brand advertising is intended to still be allowed if products are not identifiable, though guidance on this point has not yet been provided. Some exemptions apply and there is scope for reformulation of products or focus on alternative media, but non-compliance could incur heavy penalties.

A New Recipe for Regulation

The UK’s Health & Care Act 2022 (which amends the Communications Act 2003) heralds the most stringent regulation yet for the advertising of HFSS food and drink and introduces a new definition of LHP which are subject to enhanced restrictions. The legislation will officially come into effect on 5 January 2026, HOWEVER brands, agencies and media owners have committed to voluntarily comply from the original effective date of 1 October 2025. The legislation requires further amendment and clarification prior to the official January implementation date because the original legislation was not sufficiently clear in some areas. As a result, providing concrete advice at this stage for some brands will be incredibly difficult.

Cutting Through the Fat of the New Rules

Put simply, brands will now be unable to advertise “identifiable” LHP on any Ofcom-regulated TV and on-demand channels (including idents or sponsorship credits) between 5.30am and 9pm, or at all when it comes to online, paid-for content targeted at UK users (including via influencers either paid or gifted products). Any online ads which aren’t supported by spend will still need to comply with existing HFSS provisions in the CAP code (The Committee of Advertising Practice’s non-broadcast code).

“Less Healthy” is relatively easy to ascertain, these are categorised as food and soft drink products which also have a Nutrient Profile Model (“NPM“) score of 4 or more (1 or more for drinks).  The products are exactly as you might imagine:

Soft drinks with added sugar, savoury snacks, cereals, confectionary, ice cream, cakes, sweet biscuits, puddings, sweetened yoghurts, pastries, pizza, ready meals, burgers, fries, all forms of potato product (unless plain untreated or mashed with butter only), pre-prepared main meal elements which are ready to cook or require re-heating with glazes, sauces and dressings, breaded and battered foods, all sandwich products, including paninis, toasties, croissants or filled wrap products.

Crumbs of Hope?

Whilst the industry intends that brand advertising should still be permitted, provided no LHP are “identifiable”, the legislation does not currently make this express allowance. The legislation states that “identifiable” means anything that could reasonably be expected to be identified as an ad for an LHP, which has the potential to be interpreted very widely. Existing ASA (Advertising Standards Authority) guidance covering HFSS advertising states that they would deem any brand advertising that “is synonymous with a HFSS product or range of products that is mainly HFSS” to have the effect of promoting an HFSS product. As such, without explicit and clear exceptions from Government or the ASA, it is difficult to understand how confectionary or snack brands whose whole product line is comprised of, and only known for, LHP could conduct brand advertising in the prohibited media. Arguably those brands ARE identifiable as ads for LHP, even if a specific product is not featured. If a brand has a large portfolio of products and it has managed to reformulate a reasonable number of them to fall below the NPM scores set out by the legislation, they could potentially manage to conduct brand advertising without falling foul of the law, but clarity needs to come from either Government or the ASA in the next 6 months.

The Icing on the Cake

Broadcasters and on-demand providers will be liable for breaches of the watershed rules, with the relevant brands being the target of enforcement action for non-compliant online content they have paid for. The maximum financial penalties for non-compliance (from January 2026) could be the greater of 5% of turnover generated from the manufacture or sale of LHP in the previous financial year (of the relevant brand) and £250,000. In the absence of any guidance to the contrary this appears to be a reference to global turnover, but we await confirmation of this.

Whilst broadcasters and brands will ultimately be on the hook, advertising, marketing, PR or media agencies that work on behalf of food and drink brands should also tread carefully as if they steer their clients wrong, brands may seek to reclaim any fines or losses levied against them from their agencies via warranties in their client-agency agreements.

In the interim, the Government is likely to take a very dim view if brands don’t operate in the spirit of the legislation and may seek to impose even more restrictive legislation if brands try to push things beyond what was intended, or work around the provisions. If subsequent statutory instruments or guidance provide opportunity for a narrower application of the rules, we will provide further guidance at that time.

Something To Sweeten the Deal

There’s no two ways about it; the new regulations are a huge blow to traditional advertising of these products. Planning and strategy, creative and media teams will all have to re-think their approach, so what are the options?

• Reformulation of products to bring the NPM scores down, if this is possible, will allow continued advertising online and on TV for reformulated products.
• Greater reliance on own channel viral opportunities, OOH and PoS (provided they also comply with existing targeting, placement and content rules).
• The rules will not apply to advertising by or for smaller food and drink businesses with less than 250 employees, but those businesses will of course still be subject to the existing CAP and BCAP regulations which already, amongst other restrictions, prohibit HFSS advertising from being targeted towards, or appealing to, children.
• For brands operating restaurant or food outlets under franchise agreements, it is important to note that employees across all franchisee businesses will count towards total employee numbers, rather than being able to argue that there are multiple small food and drink businesses that would be exempt.
• Excluded products include infant formula, follow-on formula and baby food; total diet replacement products for weight reduction; meal replacement products with approved health claims or those intended for special medical purposes; and honey.
• The restrictions do not extend to ‘owned media‘ (i.e., any online property owned and controlled by a brand where the brand has full editorial control and ownership over content). This means that content on a brand’s own website or social media pages that does not have paid spend behind it is exempt.
• B2B advertising aimed at those in the food and drink industry is permitted.
• Ad content on Ofcom-regulated radio, or on audio-only online content such as podcasts does not fall into the regulations.
• Ads to be accessed by those outside the UK are also permitted.

There remain lots of unanswered questions and lack of clarity (including in relation to incidental inclusion of products) so the above is just a brief summary of the new provisions as they are most likely to impact agencies and their clients. If you have any specific campaign ideas or scripts you would like us to review and advise on, then please do get in touch.

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