Advertising restrictions for less healthy food or drink on TV and online: secondary legislation to provide brand advertising exemption - consultation document

Q: How to respond

Please respond using the online survey . The consultation is open for 3 weeks and will close at 11:59pm on 6 August 2025. If you respond after this date, your response will not be considered.

Question 1

Introduction

Accepted Answer

This government has a bold ambition to raise the healthiest generation of children ever and, as we set out in our manifesto, this includes tackling the childhood obesity crisis.

Obesity robs children of the best start in life and sets them up for a lifetime of health problems. Obesity costs the NHS around £11.4 billion each year and is the second biggest preventable cause of cancer. At the start of primary school, 22.1% of children in England are living with overweight or obesity and this rises to 35.8% by the time they leave (see NHS England statistics on the National Child Measurement Programme, England 2023 to 2024 school year).

The lifelong problems caused by obesity also expose health disparities that we want to address. Obesity prevalence for children in the most deprived areas of the UK is more than double that in the least deprived areas. In addition, UK children who live with overweight and obesity are 5 times more likely to live with overweight and obesity in adulthood, in comparison to children who are not living with obesity.

That is why this government committed to ban junk food advertising on TV and online. The advertising restrictions (‘the restrictions’) comprise a ban on advertising less healthy food or drink products on TV between 5:30am and 9pm, and a ban on paid-for advertising of these products online at any time. They are designed to reduce children’s exposure to less healthy food or drink products because the evidence is clear that this contributes to childhood obesity. As set out in the impact assessment published with the outcome to the Further advertising restrictions for products high in fat, salt and sugar consultation in June 2021, we expect the restrictions to remove up to 7.2 billion calories from UK children’s diets each year. In addition, the policy is expected to deliver health benefits of around £2 billion and save the NHS £50 million.

By only restricting advertisements for less healthy food or drink products, we are incentivising businesses to reformulate their products and help create a healthier food environment for our children. Working closely with the Department for Culture, Media and Sport (DCMS), we took decisive action towards implementing the restrictions by laying secondary legislation in December 2024 (The Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024) to confirm the products, businesses and services in scope of the restrictions. Alongside this, we published guidance on the products in scope to support businesses ahead of the regulations coming into effect.

At the same time, the government is conscious of the importance of advertising as a sector to the economy and to society, through the creative industries and essential services it supports. According to an Advertising Association report on UK economic growth and jobs powered by advertising investment, including the supply chain, 5% of all UK employment is supported by advertising, totalling 1.7 million jobs. It enables an independent media, which is essential to our democracy, and the value of free-to-access services which it supports (including social media, news and search engines) has been estimated at £580 per household per year or £16 billion across the UK^{[footnote 1]}. This government is keen to support proportionate regulation and the economic growth of our key sectors.

Question 2

Revised approach to implementation

Accepted Answer

Ofcom is the statutory regulator responsible for enforcing the advertising restrictions and has used powers in the Communications Act 2003 to appoint the Advertising Standards Authority (ASA) as the body responsible for frontline enforcement.

ASA has been developing implementation guidance to set out how it will enforce the restrictions and first published it alongside its 2023 consultation on restrictions on advertisements for ‘less healthy’ foods. In January 2025, ASA announced that, having considered the feedback to that consultation and after obtaining further legal advice, some parts of its guidance required revision, particularly those relating to brand advertising. ASA published further draft implementation guidance with its 2025 consultation. Its view was, as the law did not provide an explicit exemption for brand advertising, it could not give certainty as to whether particular types of brand advertising would be in or out of scope of the restrictions. The government considered that this posed significant financial risk for advertisers, and for sectors which advertising supports, who have prepared advertisements in advance of the prohibitions coming into effect.

We listened carefully to the concerns that stakeholders raised around the lack of certainty and the real-world implications. We understood the need for a resolution that provides certainty to industry and supports businesses to invest in advertising campaigns with confidence, while ensuring that we deliver our manifesto commitment and protect children from further exposure to junk food advertising and the lifelong harms of obesity. The Parliamentary Under-Secretary of State for Public Health and Prevention, Ashley Dalton MP, announced in a statement to Parliament on 22 May 2025 that the government would lay secondary legislation to explicitly exempt ‘brand advertising’ from the advertising restrictions. This would provide explicit clarity in legislation of the existing policy intention regarding brand advertising that was understood by Parliament during the passage of the Health and Care Bill in 2021 to 2022.

To allow time to develop and consult on the draft Advertising (Less Healthy Food) (Brand Advertising Exemption) Regulations 2025 (‘the draft regulations’) and bring them before Parliament, and for ASA to reflect them in its implementation guidance, the government laid secondary legislation on 3 June 2025 to confirm 5 January 2026 as the new date upon which the restrictions take effect. The government agreed to take this action on the basis that advertisers and broadcasters, with the support of online platforms and publishers, made a clear public commitment to voluntarily comply with the restrictions from 1 October 2025^{[footnote 2]}, as originally intended, notwithstanding that the prohibitions will now not take effect until 5 January 2026. This means that adverts for specific identifiable less healthy food products will not be shown online, or before the watershed on TV. We welcome that industry has made this unique commitment and is working with us to implement this important policy for children’s health.

The aim of this consultation is to gather views on the draft regulations (published alongside this consultation document) to check that the draft text is clear and fit for purpose in achieving the government’s policy intentions.

The consultation is focused solely on the nature of the brand advertising exemption set out in the regulations, and the clarity of the drafting of these regulations. We are not inviting feedback on other aspects of the policy which have already been confirmed following previous consultations and enshrined in law in the Communications Act 2003 (as amended by the Health and Care Act 2022) (‘the primary legislation’) and the Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024.

We want to gather a broad spectrum of views and welcome feedback from all stakeholders through the online survey.

After the consultation closes, we will analyse the responses, prepare the government’s response and finalise the regulations.

The following sections summarise the policy background on brand advertising and set out the questions for consultation.

Question 3

Policy background on advertising

Accepted Answer

The Communications Act 2003 (as amended by the Health and Care Act 2022) sets out that the restrictions will apply to advertisements for ‘identifiable’ less healthy food or drink products. ‘Identifiable’ means if persons in the UK could reasonably be expected to be able to identify an advertisement as being for a less healthy product or products.

The government’s view remains that brand advertising is not in scope of this policy and therefore should not be restricted, provided that the advertisement does not identify a specific less healthy product. This decision was made in 2021 following extensive consultation, based on evidence that the impact of advertising to children was centred on product-specific advertisements. It was also to make sure that brands are not pigeon-holed as ‘less healthy’ and are incentivised to reformulate and create healthier products. The draft regulations we are consulting on set out an explicit exemption for brand advertising and reflect the understanding of successive governments that the Communications Act 2003 only restricts advertisements that could reasonably be considered to be for identifiable less healthy products, and not advertisements for brands. This was clearly stated to Parliament during debates on the Health and Care Bill 2022 during its passage in 2021 to 2022.

The government re-affirmed this position through written statements to Parliament on 7 April and 22 May 2025. The draft regulations on which we are consulting intend to put this position beyond doubt by providing an explicit exemption for brand advertising.

Approach to drafting the regulations

There is no single definition of branding, which is complex and constantly evolving. We agreed with ASA, as the regulator of broadcast and non-broadcast advertising, that, as it suggested in its draft guidance, branding can be seen as a broad term encompassing a diverse range of content and techniques used in advertising, such as logos, livery, straplines, fonts, colour schemes, characters, audio cues and jingles.

We are providing an exemption for ‘brand advertisements’, including advertisements for brands of product ranges, while limiting that exemption to ensure that such advertisements cannot act as an advertisement for a specific less healthy food or drink product, which would be contrary to the overall policy intention in relation to the restrictions in the primary legislation.

As we re-confirmed in the written statement on 7 April 2025, the brand advertising exemption would allow companies to advertise the non-product attributes of their brands, such as their heritage, prestige, customer experience and corporate and social responsibility, as well as their healthier food or drink products. The threshold is determined by the nutrient profiling model (NPM) using the 2011 technical guidance. We intend for the draft regulations to provide legal clarity on these existing policy intentions.

How the regulations work

The Secretary of State is making these regulations in exercise of the powers conferred by sections 321A(3)(b), 368FA(3), 368Z14(4) and 402(3) of the Communications Act 2003. These powers allow the government to make regulations setting out an exception to the prohibitions for advertisements for an identifiable less healthy food or drink product. We are consulting on the draft regulations in accordance with sections 321A(8), 368FA(8) and 368Z14(9) of the Communications Act 2003.

The draft regulations published with this consultation should be read in conjunction with the relevant sections of the Communications Act 2003 that set out the prohibition, found within:

section 321A (broadcast restrictions)
section 368FA (on-demand programme services restrictions)
section 368Z14 (online restrictions)

The brand advertising exemption does not change the policy set out in the primary legislation.

As a first step, advertisements will be assessed in line with the ‘identifiability test’ in the primary legislation. If an advertisement might be considered by the regulator to be for an identifiable less healthy food or drink product, it would potentially be restricted. If it is not considered to be an advertisement for an identifiable less healthy food or drink product, it would not be restricted. This means that pure brand advertising is already likely to be out of scope of the restrictions based on the primary legislation.

However, as a second step, if the regulator considers that an advertisement may have the effect of leading a person to reasonably identify the advertisement as being for a less healthy food or drink product, it will then consider whether the advertisement falls under the definition of a ‘brand advertisement’ set out in the draft regulations. As the draft regulations can only rule advertisements out of the restrictions, they need to be carefully drafted to ensure that they do not have any unintended consequences.

Brand advertisement

The draft regulations provide objective criteria for their application. A ‘brand advertisement’ is defined as an advertisement that promotes a brand, including the brand of a range of products. This only applies if the content of the advertisement does not depict a specific less healthy food or drink product or show a photographic image of a food or drink product that is visually indistinguishable from a specific less healthy food or drink product.

The draft regulations make clear that the exemption is concerned with the ‘content’ of brand advertisements so that contextual factors, such as the perception of a brand or its association with less healthy food or drink products, do not form part of an advertisement’s assessment. This aligns with the policy intention that brand advertisements that do not identify a specific less healthy food or drink product are not in scope of the restrictions.

Depict

In defining ‘depict’ with regard to a specific less healthy food or drink product in the content of an advertisement, we have taken a broad view, as ASA did in its draft implementation guidance which it consulted on in 2023 and 2025. This definition includes depictions by way of name, text, imagery, audio cue, jingle or other branding technique that may lead someone to identify a specific less healthy food or drink product, as distinct from any other variant. It considers these branding techniques in isolation and in combination, because the cumulative effect of multiple branding techniques may lead someone to identify a specific less healthy food or drink product.

Less healthy

In the draft regulations, ‘less healthy’ has the same meaning as the relevant section of the Communications Act 2003 (as amended by the Health and Care Act 2022).

Range of products

A ‘range of products’ is a group of related food or drink products and may also include a group of products composed of variants of a product, such as different flavours. However, a group of products does not count as a range if the only difference is the size of a pack or a or packaging format, such as carton, tin, block or bag. It is intended that a range of products for these purposes will be products with different recipes or composition, including different flavour variants.

Specific

‘Specific’ product is defined as a single product that can be purchased and has characteristics that make it identifiable as that product and no other product capable of being purchased on the market, by brand and composition. However, if the only difference between the products is the size or packaging format (as above), they would constitute the same single specific product and not a range of products.

Photographic Image

By ‘photographic image’, we mean a photograph or image that is made or altered by computer graphics to look like a realistic photograph, still or video. Unlike the definition of depict, this provision relates to photographic images only and includes circumstances where the specific product may not be definitively identifiable, but the product in the image is visually indistinguishable from a specific less healthy food or drink product. An example might be a picture of a chocolate bar out of its wrapper, which might be either a specific milk chocolate bar or a visually indistinguishable orange milk chocolate bar from the same brand range. Although the picture could be 1 of 2 products, in this instance it would not benefit from the exemption just because it cannot be demonstrated which of the 2 alternatives is photographed in the advert.

This is different from advertising the logo of a brand or brand of a product range, which might constitute a number of less healthy products, but where no specific less healthy product (or photographic image as above) is identified or represented in the advert. For that reason, advertisements may include a photographic image of packaging that might belong to a product range that includes one or more less healthy products, provided that the food or drink itself is not shown, and the packaging does not identify any specific less healthy food or drink product.

Name of company or brand

We recognise that there may be some instances where the names of brands for companies, franchises or other commercial entities include the full name of a specific less healthy food or drink product that they produce. We do not intend for advertisements by these brands to be automatically restricted under the definition of ‘depict’, which includes naming of a specific less healthy food or drink product. Instead, we intend for advertisements to be assessed objectively on their content and whether a specific less healthy food or drink product is depicted. Paragraph (6) within regulation 2 intends to make this clear and ensure that all brands are treated equally under the regulations. However, we are interested in views during this consultation on whether this explicit clarification is necessary.

Question 4

How to respond

Accepted Answer

Please respond using the online survey.

The consultation is open for 3 weeks and will close at 11:59pm on 6 August 2025. If you respond after this date, your response will not be considered.

Question 5

Consultation questions

Accepted Answer

About you

In what capacity are you responding to this survey?

An individual sharing my personal views and experiences
An individual sharing my professional views
On behalf of an organisation

Question for professionals

What sector do you work in?

Public sector
Private sector
Third sector
Other, please specify

What is your age? (Optional)

Under 13
13 to 15
16 to 24
25 to 34
35 to 44
45 to 54
55 to 64
65 to 74
75 or above
Prefer not to say

What is your sex? (Optional)

Male
Female
Prefer not to say

Which area of the UK do you live in? (Optional)

England
Wales
Scotland
Northern Ireland
I live outside the UK

Where do you live in England? (Optional)

North East England
North West England
Yorkshire and the Humber
East of England
East Midlands
West Midlands
South East England
South West England
London
Prefer not to say

What is your ethnic group? (Optional)

White - includes British, Northern Irish, Irish, Gypsy, Irish Traveller, Roma or any other White background
Mixed or multiple ethnic groups - includes White and Black Caribbean, White and Black African, White and Asian or any other Mixed or multiple background
Asian or British Asian - includes Indian, Pakistani, Bangladeshi, Chinese or any other Asian background
Black, Black British, Caribbean, African or any other Black background
Other - includes Arab or any other ethnic group
Prefer not to say

Questions for organisations

What is the name of your organisation? (Optional)

Which sector does your organisation work in?

Private
Public
Third sector
Other, please specify

How would you describe the work of your organisation?

Manufacturer
Business selling or serving food in the eating out of home sector
Retailer
Academic
Charity
Non-government organisation
Trade association
Other, please specify

Where does your organisation operate or provide services?

England
Wales
Scotland
Northern Ireland
The whole of the UK
Outside the UK

Questions on the draft regulations for all respondents

As set out in written statements to Parliament on 7 April and 22 May 2025, the government’s view remains that brand advertisements that do not identify a specific less healthy food or drink product are not in scope of the advertising restrictions for less healthy food or drink on TV and online.

When answering these questions, refer to the draft regulations published alongside this consultation document.

The questions are designed to check that the draft text is clear and fit for purpose in achieving the government’s policy intentions.

Do you agree or disagree that the draft regulations make clear how brand advertisements will be treated by the advertising restrictions?

Agree, it is clear
Disagree, it is not clear
I don’t know