How will the restrictions on HFSS advertising and sponsorship will work in practice?

How will the restrictions on HFSS work in practice?

The Health and Care Act, which received Royal Assent on 28 April 2022, amended the Communications Act 2003 to introduce new restrictions on advertising and sponsorship for certain food and drink products that are high in fat, salt, or sugar (HFSS). HFSS products are otherwise known as ‘less healthy food and drink products’ according to the nutrient profiling technical guidance published in 2011. The new restrictions apply to advertising on Ofcom-regulated TV, on-demand programme services (ODPS) and online.

What are the restrictions?

The restrictions:

• prohibit TV services from including advertising and sponsorship for less healthy food and drink products between 5.30am and 9pm;

• prohibit ODPS from including advertising and sponsorship for less healthy food and drink products between 5.30am and 9pm; and

• prohibit paid-for advertisements for less healthy food and drink products that are aimed at UK users from being placed online at any time.

These restrictions take effect from 1 October 2025.

How will the restrictions be implemented?

Between 21 February and 21 April 2023, the Office of Communications (Ofcom), which is the UK communications regulator, consulted on proposals for implementing the new statutory restrictions. Following the conclusion of the consultation, Ofcom has published a statement detailing the following outcomes:

• New rules will be added to section 32 of the UK Code of Broadcast Advertising (BCAP Code) and section nine of the Ofcom Broadcasting Code to reflect the statutory restrictions.

• BCAP will produce guidance on the new rules and how they interact with existing rules on advertising for products high in fat, salt and sugar. Ofcom rejected calls to state in the BCAP Code that brand (as opposed to product) advertising is exempt from the new rules.

• Food and drink products are in-scope if defined as ‘less healthy’ under the Department of Health’s 2011 nutrient profiling guidance and specified in Government regulations. Following consultation responses, Ofcom will include explicit reference to this guidance in the BCAP Code and Broadcasting Code.

• The Advertising Standards Authority (ASA) will update the appendix to the UK Code of Non-broadcast Advertising (CAP Code) for ODPS advertising to reflect the statutory restrictions. Ofcom will update its ODPS Rules and Guidance to incorporate the restrictions for sponsorship announcements on ODPS.

• Ofcom will designate the ASA as a co-regulator for the on-line advertising restrictions. The consultation says that the ASA will reflect the statutory requirements in a code (likely the CAP Code), handle public complaints about non-compliant adverts, require non-compliant advertisers to obey rulings and develop enforcement guidance.

How we can help

Government has also completed a consultation on draft regulations to define key aspects of the restrictions, including “less healthy food” and “food or drink SMEs” (businesses with fewer than 250 employees who are exempt from the restrictions). We will update you when we know the conclusions that Government has reached. In the meantime, if you need any help understanding the legislation surrounding HFSS products and how they apply to your business, just give Richard Naish or any of the other members of the Food and Drink team a call.

Explore more updates for food and drink businesses in this edition of our Food & Drink Update.