Restrictions on the advertising of HFSS products becomes law

12th May 2022

On 28 April 2022, the Health and Care Act 2022 (Act) received Royal Assent. As well as making significant changes to reform the delivery of health services in England, the Act amends the Communications Act 2003 to introduce new statutory controls on the advertising of products high in fat, sugar and salt (HFSS). The controls are part of Government’s Tackling obesity: empowering adults and children to live healthier lives strategy. The controls are primarily targeted at improving the health of children, through reducing their intake of HFSS products, but benefits for adults’ health are also anticipated.

The legislation aims to reduce children’s exposure to the advertising of less healthy food and drink products on TV and online by:

• requiring Ofcom to introduce a 5.30 a.m. to 9.00 p.m. watershed for TV advertising of HFSS products, subject to specific exceptions. All on demand programme services (ODPS) that are subject to Part 4A of the Communications Act 2003 will also be included in the TV watershed;
• banning paid-for advertising online of HFSS products, subject to specific exemptions. The restriction will not apply to “owned media”, which is online property owned by a brand and over which the brand exerts full editorial control and ownership over content, such as a blog, website or social media channel; and
• ODPS which are not UK regulated will be subject to the same controls as online advertising because they are not defined in the Communications Act 2003 and so are considered to be “internet services”.

Exemptions

There will be exemptions to take into account the impact the new rules will have on business. They are as follows:

• Brand advertising will be permitted provided there are no identifiable HFSS products in the adverts. By identifiable Government means that the public would recognise what HFSS product was being advertised. The reason for this exemption is to ensure that brands are not pigeonholed as synonymous with HFSS products and have the freedom to reformulate and move towards offering healthier products.
• Small and medium enterprises (SMEs) with 249 employees or fewer will be exempt from the HFSS advertising restrictions.
• Audio online content which is streamed (such as podcasts and online only radio) will be exempt from the HFSS restrictions.
• Broadcast radio is exempt.
• Businesses can continue to promote their products or services to other businesses.
• To ensure that consumers can still buy products online and have enough information at the point of purchase the restrictions on HFSS advertising do not apply to transactional content. However, adverts with a “click now to buy” button or “swipe up to buy” function will not be allowed.

The provisions dealing with the advertising restrictions will come into force in July 2022 but will not apply until 1 January 2023. The Secretary of State may, however, defer the January 2023 start date.

WM Comment

Working on the assumption that the start date of the new advertising controls will not be delayed, six months isn’t a long time for businesses to rethink their advertising campaigns for HFSS products. Food businesses need to act now.