Closed consultation

Introducing further advertising restrictions on TV and online for products high in fat, salt or sugar: consultation on secondary legislation

Published 9 December 2022

Background

Childhood obesity is one of the biggest health problems this nation faces.^{[footnote 1]} The latest data from the National Child Measurement Programme 2021 to 2022 showed that over 23% of children in Year 6 were living with obesity, with 5.8% of children living with severe obesity. The government is determined to tackle this issue and has been clear that we must prioritise our children’s health.

In 2018, the government set the ambition to halve childhood obesity by 2030. Obesity is associated with reduced life expectancy. It is a risk factor for a range of chronic diseases including cardiovascular disease, type 2 diabetes, some types of cancer, liver and respiratory disease.^{[footnote 2]} Furthermore, COVID-19 has brought the dangers of obesity into sharper focus and we know that reducing excess weight is one of the few modifiable risk factors for COVID-19. Therefore, the government has been clear that for the future resilience of the population, we need to address the risks obesity presents to our whole population.

Reducing children’s exposure to high in fat, salt or sugar (HFSS) product advertising on TV and online forms an important part of our approach to halving childhood obesity by 2030. We want to ensure that the media our children engage with the most promotes a healthy diet. Evidence suggests that exposure to HFSS advertising can affect what and when children eat, ^{[footnote 3][footnote 4][footnote 5]} shaping children’s food preferences from a young age.^{[footnote 6]} Over time, excess consumption can lead to children becoming overweight or obese, all of which puts their future health at risk.

In July 2020, as part of the tackling obesity strategy, the government announced its intention to implement a 9pm watershed on TV for advertising HFSS products following an initial consultation in 2019, and to consult later that year on how to introduce further HFSS advertising restrictions online. The second consultation was held in 2020. The consultations were conducted by the Department of Health and Social Care (DHSC) and the Department for Digital, Media, Culture and Sport (DCMS). Having taken into account feedback during these consultation exercises, the government published a formal consultation response in June 2021, which announced the UK wide policy will:

• introduce a 9pm TV watershed for HFSS products and a restriction of paid-for HFSS advertising online

• mean all on-demand programme services (ODPS) under the jurisdiction of the UK, and therefore regulated by Ofcom, will be included in the TV watershed for HFSS advertising

• mean non-UK regulated ODPS will be included in the restriction of paid-for HFSS advertising online because they are outside UK jurisdiction

The consultation response also included policy detail on:

• business and products that will be in scope of the restrictions

• how products will be defined as HFSS

• exemptions to the policy

• how the restrictions will be implemented and enforced

As outlined in the consultation response, certain elements of the policy will be taken forward in secondary legislation. These regulations will be made under new powers in the Communications Act 2003 (‘the Act’), introduced by primary legislation via the Health and Care Act 2022. The Health and Care Act 2022 inserted new sections into the Act which:

• prohibit television programme services provided between 5.30am and 9.00pm from including advertisements for identifiable HFSS products (section 321A)

• prohibit ODPS regulated by Ofcom, provided between 5.30am and 9.00pm, from including advertisements for identifiable HFSS products (section 368FA)

• prohibit paid-for advertising of identifiable HFSS products online (section 368Z14)

The Act also grants regulators with the necessary powers for implementation. The Health and Care Act 2022 received Royal Assent on 28 April 2022. See section (172) and Schedule (18) for HFSS advertising restrictions in the Health and Care Act.

Under the Act, the new advertising restrictions are required to take effect from 1 January 2023. However, as announced in December 2022, we are delaying implementation of the policy, so that it comes into force on 1 October 2025. This consultation does not relate to the Statutory Instrument (SI) necessary to change the date of implementation of the advertising restrictions in the legislation to 1 October 2025.

As part of implementing the restrictions, we will bring forward secondary legislation covering the following areas:

• defining the products in scope of the advertising restrictions

• defining food and drink small and medium-sized enterprises (SMEs) for the purposes of the SME exemptions

• defining services connected to regulated radio for the purposes of section 368Z14(3)(c) to ensure that the exemption for radio services – which are outside the scope of the prohibition – covers online services provided by commercial and community radio broadcasters

We are also seeking views on whether the secondary legislation should provide for an exemption for audio-only media to cover other non-broadcast radio services that are carried online including UK-based internet radio services.

The government is seeking feedback on our draft regulations (which should be read with this document) from those with an interest in these regulations and who will have to comply with them. The aim of this consultation is to gather views on the specific text in the regulations to ensure these are fit for purpose. With the exception of the proposal for a new audio-only exemption in draft regulation 6, this consultation is not seeking to revisit policy decisions that were made and detailed in our response to the consultations in 2019 and 2020 but is focused on ensuring that the regulations are clear, unambiguous and can be implemented effectively once enacted. Information provided outside of the scope of the consultation, and general comments about the wider policy or Act, will not be considered as part of this consultation or addressed in any response provided to this consultation. See the Data protection section of this document for information on disclosure of responses.

Following this consultation, subject to the usual SI procedures, the government will lay the regulations as soon as possible to ensure the new restrictions can come into force on 1 October 2025.

You should read this document alongside the survey.

Products in scope

In all 3 relevant sections of the Act (TV, on-demand programme services and online) a food or drink product is defined as “less healthy” if:

• it falls within a description specified in regulations made by the Secretary of State, and

• it is “less healthy” in accordance with the relevant guidance

This outlines the 2 stage approach described in our consultation response, where to be in scope of the restrictions a product needs to fall into a relevant product category and then score 4 or above for food and 1 or above for drink, when applying the 2011 technical guidance to the 2004/2005 Nutrient Profiling Model (the relevant guidance).

Products in scope of the advertising restrictions have been outlined in regulation 3 with the following text:

Less healthy food and drink products

1) For the purposes of sections 321A(1), 368FA(1) and 368Z14(1) of the Communications Act 2003, a product is a “less healthy food or drink product” if

a) it falls within one of the categories set out in the Schedule to these regulations, and

b) the score for the product when the nutrient profiling model is applied to it in accordance with the Nutrient Profiling Technical Guidance is

i) 4 or more points in the case of a product which is not a drink, or

ii) 1 or more points in the case of a product which is a drink.

2) Products within the categories set out in the Schedule are “less healthy food or drink products” whether they are sold for consumption at home or elsewhere.

In these regulations “the Nutrient Profiling Technical Guidance” means the technical guidance: working out the NP score for a food or drink published by the Department of Health on 1 January 2011.

Question

Do you agree or disagree that regulation 3 makes it clear how businesses and regulators can determine if a food or drink product is in scope of the advertising restrictions?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

Question

Do you agree or disagree that regulation 3 clearly describes standards for determining the nutrient profiling model score for a product, including accessing the technical guidance document?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

As outlined in the consultation response, the categories in the Schedule to the regulations are based on the government’s sugar and calorie reformulation programmes or the soft drinks industry levy, narrowed to only include those product categories of most concern to childhood obesity. The proposed product categories in scope are intended to mirror those in the promotion and placement restrictions with an additional category and text in category 13 to cover the out-of-home sector.

The restrictions will apply consistently to HFSS food and drink advertisements in scope, meaning all categories will apply to food and drink advertised for purchase in out-of-home settings as well as the retail environment. Therefore, for clarity we have not explicitly included some of the previously labelled out-of-home categories, to prevent overlap. The government anticipates that further guidance will be issued to complement the regulations and will again be in line with guidance set out in support of promotion and placement restrictions.

Product categories in scope of the advertising restrictions are outlined in the Schedule to the regulations and can be found in the draft regulations. The aim of this section is to consult on the wording of each category so products belonging to each are as clear as possible.

Question

Do you agree or disagree that the text in the Schedule clearly and accurately describes which products fall into each category?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

Regulation 3(2) also includes the following text:

Products within the categories set out in the Schedule are “less healthy food or drink products” whether they are sold for consumption at home or elsewhere.

Question

Do you agree or disagree that the text in regulation 3 makes it clear all categories apply to both retail and out-of-home food and drink products?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

Businesses in scope

The Act provides an exemption for advertisements included in television programming services, on-demand programme services and paid advertisements placed on the internet by or on behalf of a person who is, at the time when the arrangements are made, a ‘food or drink SME’. Secondary legislation will provide a definition of a ‘food or drink SME’, to ensure that businesses with 249 employees or fewer that pay to advertise HFSS products will be exempt from the HFSS restrictions. This definition will also outline that a company’s number of employees internationally count towards their total number of employees and that franchises are treated as part of the franchisor business and not as a separate business.

The intention in this consultation is to ensure that the definition of ‘food or drink SMEs’ is clear and unambiguous.

The definition of ‘food or drink SMEs’ has been outlined in regulation 4 with the following text:

1) For the purposes of sections 321A(3), 368FA(2) and 368Z14(2) of the Communications Act 2003, a person is a “food or drink SME” during a financial year if that person:

a) carries on one or more businesses which involve or are associated with the manufacture or sale of food or drink during the financial year, and

b) on the first day of the financial year, employs fewer than 250 people for the purposes of those businesses.

2) For the purposes of determining how many persons are employed for the purposes of a business:

a) a business that is carried on pursuant to a franchise agreement is to be treated as part of the business of the franchisor and not as a separate business carried on by the franchisee;

b) persons employed for the purposes of the business in a country or territory outside the United Kingdom are to be taken into account.

3) For the purposes of paragraph (2), a “franchise agreement” exists where one undertaking (“the franchisee”) and another undertaking (“the franchisor”) agree that the franchisee carries on a business activity which includes the sale or distribution of food or drink (“the franchise business”), and paragraph (4) applies to the franchise business.

4) This paragraph applies to a franchise business if

a) the food or drink provided in the franchise business,

b) the internal or external appearance of the premises where the franchise business is carried on, and

c) the business model used for the operation of the franchise business,

are agreed by the franchisor, and are similar to those of other undertakings in respect of which the franchisor has entered into comparable contractual arrangements.

5) Paragraph (4) does not apply to a franchise business if the franchise agreement is limited to the alcoholic drinks provided in the franchise business and the franchisee is free to determine what other food or drink is provided.

6) For the purposes of paragraph (1)(b)

a) the employees of a business are the persons who are employed for the purposes of the business;

b) “employee” means an individual who has entered into, or works under, a contract of employment, whether that contract is for full-time or part-time employment;

c) “contract of employment” means a contract of service, whether express or implied, and, if it is express, whether oral or in writing;

d) persons employed for the purposes of a business include persons who are members of staff of an associated company of the business who also work for the purposes of the business, and for these purposes

i) “associated company” means a company which is a parent undertaking or a subsidiary undertaking of the company which owns the business, and

ii) “parent undertaking” and “subsidiary undertaking” have the same meaning as in section 1162 of the Companies Act 2006.

Question

Do you agree or disagree that the definition in regulation 4 accurately and clearly describes what businesses will be classified as ‘food and drink SMEs’?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

Question

Do you agree or disagree that the definition in regulation 4 accurately and clearly describes how to define employees of a business?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

It is our intention for a franchise to be treated as part of the franchisor business, not as separate for the purposes of determining the number of employees in a business.

Question

Do you agree or disagree that regulation 4 clearly describes what features of a business would constitute a franchise?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

Question

Do you agree or disagree that regulation 4 clearly describes what would constitute a franchise agreement?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

Our policy intention is to preclude large multinationals from exploiting loopholes by, for example, setting up a smaller UK company separate to the large corporation. Therefore, we intend for a company’s number of employees internationally to count towards their total number of employees.

Question

Do you agree or disagree that regulation 4 clearly describes that the total number of employees in a business includes those employed outside of the UK or by franchises?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

Question

Do you agree or disagree that the definitions in regulation 4 provide sufficient overall clarity on the definition of an SME?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

Question

Are there any unintended consequences that the government should consider regarding the definition of an SME?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

Services in scope

Services connected to regulated radio

Broadcast radio is not within the scope of these advertising restrictions. In respect of the online prohibition, the Act provides a power that will allow the government to define what is meant by “services connected to regulated radio services”. The purpose of this power is to enable the government to ensure that radio, where it is distributed via the internet or where radio programmes are downloaded via the internet, is also excluded from the scope of these advertising restrictions. Audio advertisements on the online streams of regulated commercial and community radio stations, will be exempted from the prohibition, provided there are no visual accompaniments to the sound.

Services in scope of the advertising restrictions have been outlined in regulation 5 with the following text:

1) For the purposes of section 368Z14(3)(c), a service is a “service connected to regulated radio services” if it is a service

a) provided by means of the internet;

b) distributing audio items which are the same or substantially the same as items broadcast by a relevant radio service digitally or in analogue form.

2) For the purposes of paragraph (1)(b), a “relevant radio service” is a radio service, other than a radio multiplex service, regulated by OFCOM under section 245 of the Communications Act 2003.

3) A visual advertisement included in a service connected to regulated radio services, which distributes an audio item, is not to be treated as part of that service.

Question

Do you agree or disagree that regulation 5 clearly describes and fully captures what constitutes a service connected to regulated radio services?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

Audio only

As outlined in our consultation response, our intention is for audio-only content online, such as podcasts and internet-only radio services (where services are not regulated), to be in scope but exempt from the online restrictions. However, audio advertising which has a visual component is in scope of the restrictions. This is outlined in regulation 6 with the following text:

1) Section 368Z14(1) does not apply in relation to advertisements, which

a) are included in a service distributing an audio item by means of the internet which is not a service connected to a regulated radio service, within the meaning of regulation 5, and

b) are not visual advertisements.

Under regulation 2:

• “audio item” means an item consisting wholly of sound

• “visual advertisement” means an advertisement which consists of moving or still images, or legible text, or a combination of those things

Question

Do you agree or disagree that regulation 6 clearly describes and fully captures what audio-only content is?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

Question

Do you agree or disagree that regulation 6 makes it clear what is considered a visual advertisement included with an audio item?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

Question

Do you agree or disagree that the relevant parts of the regulations provide sufficient overall clarity on the services in scope of the advertising restrictions?

• Agree, it is clear

• Disagree, it is not clear

• I don’t know

Please explain your answer

Further feedback

Question

Do you have any additional comments on the draft regulations?

Next steps

We will be working with the regulators to establish robust guidance for industry ahead of the restrictions coming into force on 1 October 2025.

This consultation invites interested parties to comment on the details of the draft Statutory Instrument. As an alternative to completing the online survey, any comments on the draft regulations can be sent to childhood.obesity@dhsc.gov.uk.

The consultation will run for 16 weeks, starting on 9 December 2022 and ending on 31 March 2023.

Responses to this consultation will be reviewed and the draft regulations will be revised appropriately before they are laid before Parliament.

Data protection

This privacy notice is provided within the context of the notice provided to meet the obligations as set out in Articles 13 and 14 of the UK GDPR.

The information you provide in responses to this consultation is managed in accordance with the Department of Health and Social Care’s Information Charter and the Department for Digital Culture, Media and Sport’s information charter. The information you supply will be processed by the Healthy Weight and Nutrition team in DHSC and the Media and Creative Industries policy team in DCMS in accordance with the Data Protection Act 2018 and the General Data Protection Regulation.

The government’s response to the consultation will summarise feedback received through the consultation using aggregated data and will not contain any personal information that could identify you. We will not publish the names or contact details of respondents and will not include the names of organisations responding unless we have express permission to do so.

Outside of specific exemptions under the legislation, your personal data shall be retained for no longer than the purposes for which it is being processed, in line with DHSC’s privacy notice and DCMS’s personal information charter.

Data controller

DHSC is the data controller.

What personal data is

Personal data is any information relating to an identified or identifiable natural living person, otherwise known as a data subject. A data subject is someone who can be recognised, directly or indirectly, by information such as a name, an identification number, location data, an online identifier, or data relating to their physical, physiological, genetic, mental, economic, cultural, or social identity. These types of identifying information are known as personal data. Data protection law applies to the processing of personal data, including its collection, use and storage.

What personal data we collect and how we keep your data secure

DCMS will not receive your personal data as part of this process. This is because DHSC will receive your responses to the consultation, which will include personal data such as your name, age, contact details and job title.

For further information on how DHSC processes your personal data, please see the DHSC privacy notice.

DCMS will only receive anonymised responses to the consultation, this means the responses we receive from DHSC will not contain any personally identifiable information.

Storage of data by DHSC is provided via secure computing infrastructure on servers located in the European Economic Area (EEA). Our platforms are subject to extensive security protections and encryption measures.

Your personal data will be stored in a secure government IT system and the SurveyOptic server. Storage of data by SurveyOptic is provided via secure servers located in the United Kingdom (UK).

How we will use your data

Your anonymised responses will be used to carry out our functions as a government department. This includes any tasks carried out in the public interest, such as this consultation.

The legal basis for processing your data

Processing personal data relies on the following lawful basis:

Article 6 (1) (e) of the UK GDPR; Public Task – it is necessary to perform a public task (to carry out a public function or exercise powers set out in law, or to perform a specific task in the public interest that is set out in law).

This includes public consultations, such as this consultation.

Who your data will be shared with

Your data will not be shared outside of DHSC, who will be receiving your survey responses. Anonymised consultation responses will be shared with DCMS and with other government departments who have an interest in the results of the consultation.

Retention and disposal policy

Your personal data will be held for 3 years after the survey is closed. This is so that DCMS and DHSC are able to contact you regarding the result of the survey following analysis of the responses. If you agree to be contacted and receive information about other consultations, your personal data will be stored for email marketing purposes. You can opt-out of this at any time.

Your rights as a data subject

By law, you have rights as a data subject. Your rights under the GDPR and the DPA 2018 apply.

These rights are:

• the right to get copies of information – individuals have the right to ask for a copy of any information about them that is used
• the right to get information corrected – individuals have the right to ask for any information held about them that they think is inaccurate, to be corrected
• the right to limit how the information is used – individuals have the right to ask for any of the information held about them to be restricted, for example, if they think inaccurate information is being used
• the right to object to the information being used – individuals can ask for any information held about them to not be used. However, this is not an absolute right, and continued use of the information may be necessary, with individuals being advised if this is the case
• the right to get information deleted – this is not an absolute right, and continued use of the information may be necessary, with individuals being advised if this is the case

Links to other websites

Where we provide links to websites of other organisations, this privacy notice does not cover how that organisation processes personal information. We encourage you to read the privacy notices of the other websites you visit.

• cookies on GOV.UK

• privacy notice on GOV.UK

Disclosure of responses

Please note that, as a public body, DHSC or DCMS may be required by law to publish or disclose information provided in response to this consultation in accordance with access to information regimes:

• The Freedom of Information Act 2000

• The Data Protection Act 2018

• The General Data Protection Regulation

By providing personal, confidential, commercial or intellectual property information for the purpose of the public consultation exercise, it is understood that you consent to its disclosure and publication where necessary. However, as noted above no identifiable data (such as names of individuals, organisations and businesses, or contact details) will be published unless we have express permission to do so. Confidential information is disclosed at the respondent’s risk; we would encourage any confidential or sensitive information to be marked as such in your response so that this information can be taken into account when responding to a request.

Under the Data Protection Act 2018 (and the General Data Protection Regulation), you have certain rights to access your personal data and have it corrected, restricted or erased (in certain circumstances), and you can withdraw your consent to us processing your personal data at any time. If you decide to withdraw your response, you will need to contact data_protection@dhsc.gov.uk or write to:

Data Protection Officer
1st Floor North
39 Victoria Street
London
SW1H 0EU

Comments or complaints

Anyone unhappy or wishing to complain about how personal data is used as part of this consultation, should contact data_protection@dhsc.gov.uk in the first instance or write to:

Data Protection Officer
1st Floor North
39 Victoria Street
London
SW1H 0EU

Anyone who is still not satisfied can complain to the Information Commissioner’s Office. Their website address is www.ico.org.uk and their postal address is:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Email: casework@ico.org.uk
Telephone: 0303 123 1113
Textphone: 01625 545 860
Monday to Friday, 9am to 4:30pm

1. Time to solve childhood obesity, an independent report by former Chief Medical Officer (CMO) Professor Dame Sally Davies ↩

2. Guh and others (2009). The incidence of co-morbidities related to obesity and overweight: a systematic review and meta-analysis, BMC Public Health. ↩

3. Cairns G, Angus K, Hastings G (2009). The extent, nature and effects of food promotion to children: a review of the evidence to December 2008, World Health Organization, WHO Press ↩

4. Halford JC and others (2007). ‘Beyond-brand effect of television food advertisements on food choice in children: the effects of weight status.’ Public Health Nutrition 11(9):897 to 904 ↩

5. Halford JC, Gillespie J, Brown V, Pontin EE, Dovey TM (2004). ‘Effect of television advertisements for foods on food consumption in children.’ Appetite. 1 April; 42(2):221 to 225 ↩

6. Hastings G, Stead M, McDermott L, Forsyth A, MacKintosh AM, Rayner M, Godfrey C, Caraher M, Angus K (2003). ‘Review of research on the effects of food promotion to children.’ London: Food Standards Agency. 22 September ↩