Background
Ofcom recently published a consultation setting out its approach to implementing and regulating new food advertising rules introduced by the Health and Care Act 2022 (“HCA 2022”).
Amongst other things, Ofcom is seeking stakeholders’ views on proposed amendments to the BCAP Code and Broadcasting Code to reflect the new food advertising rules under the HCA 2022.
What has changed?
The HCA 2022 introduced further restrictions on the advertising of less healthy food and drink products from 1 October 2025.
‘Less healthy’ food and drink products are those that are assessed as high in fat, salt or sugar (“HFSS”) in accordance with the Department of Health and Social Care’s nutrient profiling model. Foods scoring 4 or more points and drinks scoring 1 or more points are classified as HFSS.
In summary, these 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).
Under existing advertising rules, adverts for HFSS products must not be directed at children (under-16s) through the selection of media or context in which they appear and no medium should be used to advertise HFSS products where more than 25 per cent of the audience are under 16. The HCA 2022 extends these restrictions to introduce a 9pm watershed, as well as now covering ODPS and online content (and this is no longer simply directed to limit exposure to children).
Certain exemptions apply which address the impact of rule changes on businesses. In particular, these restrictions do not apply to:
(a) “owned media” (online property owned and controlled, usually by a brand i.e. their website) to ensure that brands are able to talk about their products in the spaces they own; and
(b) SMEs (fewer than 250 employees) that pay to advertise HFSS products.
The Ofcom consultation
In its consultation, Ofcom is:
(a) confirming that the existing co-regulatory arrangements for TV and ODPS extend to the new advertising restrictions;
(b) consulting on proposed amendments to the BCAP Code and the Broadcasting Code to reflect the new restrictions that apply to advertising and sponsorship on TV; and
(c) consulting on a proposal to designate the ASA as a co-regulator for the online advertising prohibition.
Co-regulation of broadcast advertising
For advertising on TV and ODPS, Ofcom has long established co-regulatory relationships with the Advertising Standards Authority (“ASA”), the Broadcast Committee of Advertising Practice (“BCAP”) and the Broadcast Standards Board of Finance (“BASBOF”), and has contracting out certain of its functions to these bodies.
Enforcement of the new restrictions for TV and ODPS advertising will fall under these existing co-regulatory relationships.
Amendments to the BCAP Code and Broadcasting Code
The BCAP Code includes existing rules on HFSS advertising that cover content and scheduling, and the Broadcasting Code contains rules for TV sponsorship. Ofcom is proposing changes to the rules under the BCAP Code and Broadcasting Code to ensure these reflect the further restrictions introduced under the HCA 2022.
Whilst BCAP is generally responsible for setting rules in the BCAP Code and consulting on any changes (subject to Ofcom’s approval), Ofcom have opted to consult on the proposed BCAP Code changes in this instance to provide stakeholders with the maximum amount of time to prepare for the new restrictions coming into force.
Co-regulation of online advertising
Ofcom may designate another body to be the appropriate regulatory authority for the purposes of online advertising. In light of the ASA’s existing role regulating online advertising under the self-regulatory system, and the current co-regulatory arrangements with Ofcom, Ofcom is proposing to designate the ASA as a co-regulator for the online advertising prohibition.
Liability and enforcement
Ofcom will be the statutory regulator and the expectation is that the ASA, if designated as a co-regulator, should be able to achieve broad compliance through existing regulatory mechanisms (i.e. naming and shaming, takedown orders).
In circumstances where compliance may not be achieved, however, Ofcom may intervene (whether by exercising formal information gathering powers, issuing an enforcement notification requiring the advertiser to take specified actions or imposing a fine).
Comment
Affected businesses should consider the impact of these further advertising restrictions and what business changes will be required in order to comply, in readiness for 1 October 2025. Brands and advertisers will need to ensure they understand all relevant CAP and/or BCAP restrictions and applicable sector or medium-specific rules.
The consultation closes on 21 April 2023 and submissions can be made here.