Ofcom statement on new rules for advertising less healthy food and drink

We previously reported on Ofcom’s consultation setting out its approach to implementing and regulating new food advertising rules introduced by the Health and Care Act 2022 – which can be found here. On 10^th July 2023 Ofcom published a statement summarising the responses and detailing the outcome of that consultation.

In summary the new rules:

• prohibit TV services from including advertising and sponsorship for HFSS products between 5.30am and 9pm (not limited to children);
• prohibit paid-for online advertisements for HFSS products that are aimed at UK users from being placed online at all times, subject to certain exemptions;
• prohibit on-demand programme services (“ODPS”) which are regulated by Ofcom (i.e. under UK jurisdiction) from including advertising and sponsorship for HFSS products between 5.30am and 9pm; and
• impose on all ODPS that are outside UK jurisdiction the same restriction as applies to paid-for online advertisements (i.e. prohibited at all times).

The restrictions do not apply to small or medium enterprises or to ‘owned media’ (i.e. brands’ controlled online property such as websites).

Consultation Responses and Outcome

The consultation set out the proposed approach to implementing the restrictions by Ofcom, and confirmed that the new restrictions are covered by the existing co-regulatory arrangements that apply to existing advertising in those media. Ofcom consulted on the following specific aspects (i) the ASA being designated as a co-regulator for the new prohibitions; and (ii) proposed amendments to the BCAP Code and Broadcasting Code to reflect the restrictions.

Following the conclusion of the consultation, Ofcom have decided to:

• designate the ASA as a co-regulator in respect of the online advertising prohibition; and
• proceed with amendments to the BCAP Code and Broadcasting Code (altered slightly following the consultation).

The changes to the Codes introduce explicit reference to ‘less healthy’ food and drink products covering products which are high in fat, salt and sugar by reference to the Department of Health’s 2011 nutrient profiling, or which fall within the categories to be specified in forthcoming Regulation. The Regulation is being prepared by government following a consultation which closed on 31 March 2023 and will set out the product categories which are ‘less healthy’ and also the scope of the exemptions, including defining SMEs.

Both the new Regulation and changes to the Codes will take effect from 1 October 2025 in line with the restrictions coming into force.