Back in 2018, the UK government set a target of halving childhood obesity by 2030. Meanwhile, according to the recent World Obesity Atlas Report for 2023, over 4 billion people are expected to be overweight or obese by 2035, reflecting an increase from 38% of the world’s population in 2020 to over 50% by 2035. The UK government published its policy addressing the nation’s obesity crisis in 2020, with plans to further curb the marketing of products that are high in fat, sugar, and salt (HFSS). 

Progress of these reforms has been patchy since then, but now, with two UK consultations on controversial advertising restrictions currently in progress, it is time for food and beverage advertisers to take stock of the current position on UK HFSS regulation, and consider whether they need to participate in the current consultations.

The State of Play of the UK’s Plans to Increase HFSS Regulations

Following considerable controversy and numerous U-turns in the last few years, the current status of the UK plans to increase restrictions on the marketing of HFSS food and drink products is as follows:

• new placement rules for HFSS products were introduced in October 2022 (via The Food (Promotion and Placement) (England) Regulations 2021), i.e. restrictions on the placement and location of the goods on the shop floor. The placement restrictions apply to retailers with internal floor areas of over 2000 sq. ft, who must not locate products within a certain distance of store entrances, nor at aisle ends, checkouts and online equivalents (e.g., a checkout page). See further here;
• from 1 October 2023, restrictions will come into force on HFSS volume-based promotions, i.e. restrictions on promotions of HFSS product by volume price including promotions such as ‘buy one get one free’ and ‘3 for 2’ offers, in relation to products which meet the criteria;
• the Health and Care Act, which received royal assent on 28 April 2022, introduced prohibitions on paid-for advertisements for identifiable HFSS products, (i) on TV and on on-demand programme services (“ODPS”), before the 9pm watershed, and (ii) online (together, “the Advertising Restrictions”). These new restrictions will take effect from 1 October 2025 (with a few exemptions, notably food and drink from SMEs and advertisements targeting those working in the sector). This delayed implementation from the original plan to introduce these rules in October 2022 reflects the huge controversy that has accompanied these sweeping reforms. The current consultations relate to the implementation of these Health and Care Act prohibitions.

It should also be recalled that the pre-existing UK restrictions on HFSS advertising (in the CAP and BCAP Codes) continue to apply alongside the new ones. For all of the aforementioned restrictions, the definition of what foods and drinks are (and are not) HFSS (and so in scope) is based on the UK government’s 2011 Nutrient Profiling Model Technical Guidance (“the Technical Guidance”).

Current consultations

The two current consultations are:

• by the UK government, on the draft secondary legislation implementing the Advertising Restrictions (deadline 31 March 2023); and
• by the UK media regulator Ofcom, on how it would carry out its rule-making and enforcement duties under the Advertising Restrictions (deadline 21 April 2023).

It is important to note that the key legislative provisions containing the Advertising Restrictions were already set in stone in the Health and Care Act. But given how controversial and far reaching the Advertising Restrictions are, there will no doubt be plenty of food and beverage sector advertisers who wish to contribute to these consultations, and so influence the scope of the prohibitions (and the exceptions to them), and the ways in which they will be enforced.

The Government Consultation

The government consultation relates to the draft secondary legislation that will implement the primary legislation and that will cover:

• defining the products in scope of the advertising restrictions; and
• providing detailed definitions relating to the exemptions set out in the primary legislation for SMEs and radio ads.

In terms of in-scope products, these are set out in the Schedule to the draft Regulations (although in each case the relevant products are scored using the Technical Guidance to establish whether they are in-scope); the draft Regulations take a similar approach to the equivalent schedule of The Food (Promotion and Placement) (England) Regulations 2021. Specific questions in the consultation ask whether the draft regulations make it clear to affected businesses that their product is in the scope of restrictions, and ask respondents to highlight if the standards for determining a nutrient profiling score are inadequate.

More broadly, the Health and Care Act gives the government a wide potential opportunity to implement exemptions to the Advertising Restrictions in secondary legislation; but the proposed draft Regulations do not provide for any significant exemptions. Food and drink advertisers who are concerned about the breadth of the Advertising Restrictions may therefore want to include in the “additional comments” section of their submission to this consultation any proposals they may have for exemptions. For example, such exemptions might seek to set out (1) an exemption for ranges that include a reformulated (non-HFSS) product; and/ or (2) a clearer exception for “master brand” advertising (that references a company or product range brand, but does not depict a HFSS product), and/ or (3) exceptions for charity or cause-related marketing (for which there is a potential “public good” justification that might override the need for the prohibition).

The Ofcom Consultation

The Ofcom consultation invites views on Ofcom’s proposed amendments to the Ofcom Broadcasting Code (relating to the programme sponsorship aspects of the Advertising Restrictions) and the BCAP Code (relating to the spot advertising aspects of the TV watershed Advertising Restriction). Unsurprisingly, these amendments closely follow the wording of the Communications Act 2003 (as amended by the Health and Care Act 2022), so there is unlikely to be much controversy in these implementing provisions.

In the consultation document, Ofcom also sets out (and seeks responses to) its proposal to designate the ASA as co-regulator in relation to each of the Advertising Restrictions. This move is uncontroversial, given it extends the existing position for advertising on TV, ODPS and online to the new Advertising Restrictions (to give any body other than the ASA primary responsibility for investigating and ruling on these new Advertising Restrictions would unnecessarily complicate matters). The ASA’s functions as a co-regulator will include handling complaints, ruling on breaches, and preparing appropriate guidance. As is currently the case where Ofcom have designated the ASA as co-regulator, Ofcom will retain its “backstop” regulator status. In the case of the TV watershed and the ODPS watershed, this gives Ofcom the ability to take enforcement against broadcasters and ODPS providers, in the extreme cases where that is necessary. In relation to the paid online advertising restriction, Ofcom is able to take enforcement action in extreme cases against an online advertiser who seriously breaches that restriction.

Concluding thoughts

As well as potentially participating in these consultations, HFSS product advertisers and broadcasters should also note that the government’s stated aim is to work with regulators to establish “robust guidance” ahead of the changes coming into effect in October 2025. Further consultations may well follow in relation to that guidance, which is likely to be important to resolving areas of grey around the Advertising Restrictions.

The build-up to implementation of the Advertising Restrictions will no doubt trigger further reactions from the food and drink sector, to seek to minimise adverse commercial impact. One food manufacturer has pledged never to produce a HFSS product targeted at children, and with various leading confectionery manufacturers having already brought out non-HFSS versions of their well-known products, there is no doubt the reformulation trend will continue.