Policy paper

Health and Care Bill: advertising of less healthy food and drink

Updated 10 March 2022

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Jo Churchill, Public Health Minister, said:

We are committed to improving the health of our children and tackling obesity. The content that youngsters see can have an impact on the choices they make and habits they form. With children spending more time online it is vital we act to protect them from unhealthy advertising.

These measures form another key part of our strategy to get the nation fitter and healthier by giving them the chance to make more informed decisions when it comes to food. We need to take urgent action to level up health inequalities. This action on advertising will help to wipe billions off the national calorie count and give our children a fair chance of a healthy lifestyle.

This fact sheet explains how the government plans to introduce a 9pm watershed for advertising of less healthy food and drink that are of most concern to childhood obesity on TV and on demand programme services under jurisdiction of the UK, and a restriction on paid-for less healthy food and drink advertising online.

Background

Childhood obesity is one of the biggest health problems this nation faces, with 1 in every 3 children in England leaving primary school overweight or living with obesity.[footnote 1] The Prime Minister is determined to tackle this issue and has been clear that we must prioritise our children’s health. In 2018, the government set itself the ambition to halve childhood obesity by 2030. Since launching our strategy Tackling Obesity: empowering adults and children to live healthier lives,[footnote 2] COVID-19 has brought the dangers of obesity into sharper focus, with evidence demonstrating that those who are overweight or living with obesity are at greater risk of being seriously ill and dying from the virus. We know that reducing excess weight is one of the few modifiable risk factors for COVID-19. Obesity is also 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. 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 now.

To meet our ambition to halve childhood obesity by 2030, it is imperative we reduce children’s exposure to less healthy food and drink products advertising on TV and online. We want to ensure that the media our children engage with the most promotes a healthy diet. Evidence suggests that exposure to this type of 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 living with obesity, all of which puts their future health at risk.

Current advertising restrictions for less healthy food and drink products during children’s TV and other programming of particular appeal to children are not going far enough to protect children from seeing a significant amount of unhealthy food adverts on TV, and do not account for the increasing amount of time children spend online. Analysis from September 2019 demonstrated that almost half (47.6%) of all food adverts shown over the month on ITV1, Channel 4, Channel 5 and Sky1 were for less healthy food and drink products and this rises to nearly 60% during the 6pm to 9pm slot.[footnote 7]

Ofcom research suggests that children’s viewing peaks in the hours after school, with the largest number of child viewers concentrated around family viewing time, between 6pm and 9pm.[footnote 8] In this period children are watching programming not specifically aimed at them, for example family content rather than child-specific programming, with half of children’s viewing taking place during adult commercial programming where restrictions on less healthy food and drink advertising are weaker.

We know that children are also exposed to a significant amount of advertising for less healthy food and drink products online. Analysis commissioned by the Department for Digital, Culture, Media and Sport (DCMS) and updated following evidence provided at consultation shows that in 2019 there were 11 billion child impressions online.

Evidence suggests that less healthy food marketing in traditional media, such as TV, affects children’s eating and eating-related behaviour,[footnote 9] with emerging evidence also suggesting that less healthy food marketing in digital media has similar effects.[footnote 10] Therefore, the combined impact on children from TV and online advertising underlines the importance for the government to address less healthy food and drink products advertising.

What the Bill will do

The Bill will introduce a 9pm watershed for advertising of less healthy food or drink on TV, and a restriction on paid-for advertising of less healthy food or drink online, simultaneously, from 1 January 2023. All on-demand programme services (ODPS) under the jurisdiction of the UK, and therefore regulated by Ofcom, will be included in the TV watershed. Other ODPS will be subject to the online restriction because they are not regulated by Ofcom. This policy will be implemented UK wide.

Products in scope

The restrictions will only apply to advertising of identifiable less healthy food and drink products that are of most concern to childhood obesity. A 2-stage approach will be used to determine whether or not a product is less healthy:

1. The product will need to fall into the revised list of categories that are of most concern to childhood obesity taken from the Public Health England (PHE) Calorie and Sugar reformulation programme and Soft Drinks Industry Levy. The product categories for this provision (outlined at Annex 1 of our consultation response) will mirror those in scope of the promotions policy on location and volume restrictions, with four additional categories to cover the out of home sector:

  • main meals
  • starters
  • sides
  • small plates
  • children’s meal bundles
  • sandwiches

These categories will be detailed in secondary legislation.

2. The technical guidance specified on the face of the bill (currently known as the Nutrient Profiling Technical Guidance published by the Department of Health on 1 January 2011) which supports the 2004 to 2005 Nutrient Profile Model will then need to be applied, if a product scores 4 or more for food or one or more for drinks then it will fall within scope of the new restrictions and therefore not be able to be advertised during the TV watershed or at all if the advert is paid-for to appear online.

The TV watershed

Between 5:30am and 9pm the advertising of less healthy food and drink will be prohibited on TV. Broadcasters will be liable for any breaches.

The treatment of on-demand programme services (ODPS)

All ODPS under the jurisdiction of the UK, and therefore regulated by Ofcom, will be included in the TV watershed. Other ODPS will be subject to the online restriction because they are not regulated by Ofcom. As mentioned, UK OPDS service providers will be liable for any breaches. For other ODPS it will be the advertiser who is liable.

The online paid-for advertising restriction

The online prohibition of advertising less healthy food and drink products will only apply to paid-for advertising. This is where an advertiser pays by monetary means or there is a non-monetary benefit (for example, receiving free goods from the advertiser to post their advert).

Exclusions and exemptions from the TV watershed and online paid-for advertising restriction

In order to balance health benefits and impacts on business, there are a number of exclusions and exemptions from the prohibitions:

  • brand advertising (online and 9pm watershed) – provided the advertising does not include any identifiable less healthy food and drink products, food and drink brands can continue to advertise as this falls outside the scope of the restrictions
  • small medium enterprises (SME) (online and 9pm watershed) – a definition for SMEs will be set out in secondary legislation made under the new regulation making power in this Bill. Consistent with other policies made under the obesity strategy, it is intended that those SMEs with 249 employees or fewer that pay to advertise less healthy food and drink products that they manufacture and/or sell, will be exempt from the less healthy food and drink restrictions
  • business to business (online only) – businesses advertising less healthy food and drink can continue to promote their products or services to other food and drink businesses – the Bill provides the details of this exemption
  • transactional content (online only) – online content for the purpose of facilitating transactions involved in buying and selling products is allowed to continue – by its nature transactional content is not ‘paid for’ and is out of scope of this provision – this will ensure that consumers have enough information at the point of sale or purchase
  • audio (online only): as the impact and levels of child exposure to less healthy food and drink advertising on online audio-only media (for example podcasts, online only radio) remains unclear, we intend to exempt audio only content online through secondary legislation
  • adverts not intended for UK consumers (online only) – payments for advertisements for less healthy food and drink products are exempt if the advertisements in question are not intended to be accessed principally by a UK audience – this exemption is detailed in the Bill
  • payments made by a person who does not carry on business in the UK (online only) – payments for advertisements for less healthy food and drink products are exempt if they are made by a person who does not carry on business in the UK, provided that the advertisements in question are not intended to be accessed principally by a UK audience – this exemption is detailed in the Bill
  • broadcast radio is not within the scope of the Bill – in respect of the online prohibition, the Bill provides a power that will allow government to define what is meant by “services connected to regulated radio services” – the purpose of this power is to enable government to ensure that broadcast radio, however it is played, is excluded from the scope of this provision – audio advertisements on the online streams of regulated radio services, such as LBC or Heart FM, will be exempted from the prohibition, provided there are no visual accompaniments to the sound

In order to keep the policy proportionate, we have also defined the products in scope as being those most concerned with childhood obesity which is why you will find items like avocado, butter, cheese, salmon, hummus and mustard are not in scope of these restrictions.

Liability

Broadcasters and ODPS under UK jurisdiction will be liable for breaches of the less healthy food and drink TV watershed. For non-UK ODPS and paid-for advertising online, the persons paying for advertising will be liable for breaches.

Enforcement

The government will appoint Ofcom as the appropriate regulatory authority to enforce the online prohibition on the advertising of less healthy food and drink. The confirmed regulatory authority will then be able to appoint a day-to-day regulator to carry out frontline regulation. The government would support the Advertising Standards Agency’s (ASA) appointment to fulfil this role. This co-regulatory structure has been successful for broadcast media and government believes that it will make enforcement both rigorous and proportionate within the changing online media landscape.

The government proposes that the frontline regulator continues to use informal powers (for example, reputational sanction, such as naming and shaming) and takedown requests in the first instance. For serious breaches or where these sanctions have had no effect, the frontline regulator should be able to refer broadcasters or advertisers to the backstop regulator (Ofcom).

How these provisions will help to improve public health?

Introducing these advertising restrictions will help promote public health. As outlined above at paragraph 2, adverts for less healthy food and drink can affect what and when children eat and affect their long-term food preferences.

We estimate that introducing a watershed for broadcast TV and a restriction for paid-for online advertising could remove up to 7.2 billion calories from children’s diets per year in the UK[footnote 11].

It is important to note that this figure is a population wide estimate and calculating an average ‘calorie lost’ figure per child does not reflect the fact that this policy could have a greater impact on certain children. For example, there is evidence that children from lower socio-economic households spend more time watching TV and online,[footnote 12] and are therefore exposed to greater amounts of advertising of less healthy food compared to higher income households.[footnote 13] These children are also twice as likely to be obese as those from high income households. Evidence also suggests that less healthy food and drink adverts have a greater impact on those children who are already overweight or obese.[footnote 14] This indicates that these children are more likely to be affected by any restriction to less healthy food and drink product advertising.

In total, over the coming years this policy could be expected to reduce the number of obese children by around 20,000.[footnote 15]

Obesity also has significant financial costs. It is estimated that obesity-related conditions are currently costing the NHS £6.1 billion per year.[footnote 16] The total costs to society of these conditions have been estimated at around £27 billion per year,[footnote 17] with some estimates placing this figure much higher.[footnote 18]

We know that obesity is a complex problem caused by many different factors. No one policy and no one sector will reduce obesity on its own and it will take time to reduce obesity levels in the UK.

Further information

The following documents are relevant to the restriction and can be read at the stated locations:

● Tackling Obesity: empowering adults and children to live healthier lives

  1. NHS Digital. (2020). National Child Measurement Programme 2019 to 2020 ↩

  2. Tackling obesity: empowering adults and children to live healthier lives ↩

  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 et al. (2007). Beyond-brand effect of television (TV) food advertisements/commercials, in Public Health Nutrition 11(9):897-904 ↩

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

  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. September 22 ↩

  7. Cancer Research UK. (2020) Analysis of revenue for ITV1, Channel 4, Channel 5 and Sky One derived from HFSS TV advertising spots in September 2019. ↩

  8. Ofcom (2017), Children and parents: media use and attitudes report. Figure A1.5 ↩

  9. Cairns, G., Angus, K., Hastings, G. & Caraher, M. (2013). Systematic reviews of the evidence on the nature, extent and effects of food marketing to children. A retrospective summary. Appetite, 62, pp. 209-215. ↩

  10. Tackling food marketing to children in a digital world: trans-disciplinary perspectives ↩

  11. This figure is derived from the multiplication of the predicted calorie reduction (taken from the impact assessment on HFSS advertising restrictions) and the estimated number of children positively influenced by the policy. ↩

  12. Ofcom (2017), Children and parents: media use and attitudes report. ↩

  13. Adams J, Tyrrell R, Adamson AJ, White M. (2012). Socio-economic differences in exposure to television food advertisements in the UK: a cross-sectional study of advertisements broadcast in one television region. Public health nutrition. Mar;15(3):487-94. ↩

  14. Russell, Simon J., Helen Croker, and Russell M. Viner. (2018). The effect of screen advertising on children’s dietary intake: a systematic review and meta‐analysis. Obesity Reviews. ↩

  15. Introducing further advertising restrictions on TV and online for products high in fat, salt and sugar: government response ↩

  16. Public Health England. (2018). Health matters: obesity and the food environment. ↩

  17. McPherson, K, Marsh, T. (2007). Modelling Future Trends in Obesity and the Impact on Health. Foresight Tackling Obesities: Future Choices. ↩

  18. McKinsey Global Institute. (2014). Overcoming obesity: An initial economic analysis ↩

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