More robust advertising restrictions on HFSS products to come into force

UK – Advertising and Marketing

The Government has announced that it will introduce both a 9pm TV watershed for HFSS products and restrictions on paid-for HFSS advertising online (including on-demand programme services). These changes will come into effect in January 2024 via the Health and Care Bill 2022.

Key date(s)

• 18 March 2019 – The Government launches a consultation in relation to further advertising restrictions for products which are high in fat, salt and sugar (“HFSS”).
• 27 July 2020 – The Government launches policy paper on its strategy for tackling obesity.
• 10 November 2020 – The Government launches a further consultation in relation to a total restriction on online advertising of HFSS products.
• 24 June 2021 – The Government provides its response to the consultations and announces more robust restrictions of HFSS advertising on TV and online.
• 28 April 2022 – Health and Care Bill receives Royal Assent, becoming the Health and Care Act 2022.
• January 2024 – Restrictions on advertising for HFSS products expected to come into effect.

Status

• In order to tackle obesity in the UK, the Government has proposed further restrictions on HFSS advertising following a consultation in 2019 on putting in place further restrictions, and a further consultation in 2020 on putting in place a total ban on HFSS advertising (the “Consultations”).
• The Consultations showed strong support for further restrictions, with 79% of respondents endorsing a 9pm watershed on TV for HFSS advertising (in 2019) and 74% supporting the total online HFSS advertising restriction (in 2020).
• In its response to the Consultations, the Government announced that at the end of 2022 it would simultaneously introduce: a 9pm TV watershed for HFSS products and restrictions on paid-for HFSS advertising online (including on-demand programme services (“ODPS”)).
• The Government will use the upcoming Health and Care Bill to legislate for these changes, and the approach will be reviewed five years post-implementation.

 What it hopes to achieve 

• The Government aims to reduce children’s exposure to HFSS advertising by implementing the TV watershed. By doing so, it hopes to encourage parents to choose, and businesses to create, healthier products.
• The extension of restrictions to online advertising stems from three main objectives:
  • future-proofing the policy against changes in children’s media habits which are shifting online;
  • accounting for a lack of transparency and independent data for adverts served online; and
  • addressing concerns around the efficacy of online controls which seek to target HFSS adverts away from children.
• Additionally, the online restriction on paid-for advertising looks to limit the displacement of HFSS advertising spend from TV to online.

Who does it impact? 

• The new restrictions affect brands and advertisers who market HFSS products which are in scope of the new restrictions.
• Products will be within the scope of the new restrictions if they are "defined as less healthy":
  • for food this will equate to scoring less than four on the 2004-2005 Nutrient Profiling Model; and
  • for drink, this will equate to scoring less than one on the Nutrient Profiling Model.
• Examples of products in scope include soft drinks, confectionery and ready meals. Further examples and descriptions (broken down into 17 categories) of such products can be found in Annexes 1 and 2 of the Government's response to the Consultation.
• Further, broadcasters, on-demand programme service providers, and media space owners (i.e. online platforms) will also be affected as they will need to be able to understand and ensure compliance with the requirements.

Key points 

1. New TV watershed (including UK ODPS)

• • The new TV watershed which prohibits HFSS advertising after 9pm also covers ODPS (e.g. ads in video-on-demand) under the jurisdiction of the UK (i.e. those regulated by Ofcom).
  • Companies which are non-UK regulated will fall under the restriction of paid-for HFSS advertising online.

2. Blanket ban on paid-for HFSS advertising online

• • The new restriction is limited to “paid-for” online advertising of HFSS products only (including banner ads, video ads, in-feed advertising on social media, search listing, influencer marketing and in-game advertising). However, restrictions will not apply to “owned media” (i.e. spaces owned by brands, such as their own blogs, websites or social media channels).
  • Further, business-to-business HFSS advertising and transactional content do not fall under the online advertising restriction.

3. Liability and enforcement

• • Broadcasters and ODPS providers under UK jurisdiction will be liable for breaches of the HFSS TV watershed. However, for breaches of the online HFSS advertising restrictions (including restrictions on paid-for ads on non-UK ODPS) the advertiser or brand itself will be liable, in line with the rules on breaches of the advertising codes.
  • The Consultation also included considerations as to whether online platforms should be held responsible for breaches of restrictions on HFSS advertising. In its response, the Government noted that this issue is not unique to HFSS advertising and it should be further reviewed as part of the Online Advertising Programme.
  • The Government launched a consultation for the Online Advertising Programme on 9 March 2022. The Online Advertising Programme reviews the existing regulatory and self-regulatory frameworks for paid-for online advertising, looking into the issue of the liability of online platforms more broadly.

4. Exemption for brand advertising
   • Brand advertising itself, provided that there are no identifiable HFSS products in the adverts, will be allowed online and after the 9pm TV watershed. The Government hopes that this will incentivise brands offering HFSS products to reformulate and choose to provide healthier products.
5. No restrictions on other forms of advertising
   • HFSS advertising on audio-only media (e.g. podcasts), broadcast radio, and other forms of advertising regulated by the BCAP and CAP Codes (including print, direct marketing and cinema) will not fall under the new restrictions.

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