Delays to crunch time: The UK Government postpones new Advertising Regulations on "Less Healthy Foods"

In a further update to the ongoing saga, the UK government has announced that the long-awaited Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 (the “Advertising Regulations”), which place tighter controls on the advertising of less healthy foods, will now come into force on 5 January 2026 instead of 1 October 2025. This is to allow for the introduction of an exemption for brand advertisements under secondary legislation.  The UK Government has consistently claimed that brand advertising should not be caught by the new rules, however the CAP and BCAP implementation guidance disputed that the Advertising Regulations as then drafted allowed for such an exemption. The legislation will therefore be coming into force more than 3 years after it was originally intended to. However, in agreement with the government, advertisers and broadcasters, with the support of online platforms and publishers, have committed to voluntarily comply with the restrictions in relation to ads for specific and identifiable less healthy foods from 1 October 2025.

The Advertising Regulations:

The Advertising Regulations introduce new restrictions and an online ban for the advertisement of Less Healthy Foods (“LHFs”).  LHFs are products that fall within one of the specific food categories in a Schedule to the Advertising Regulations, and exceed a particular score under the Food Standard Agency’s 2004/2005 Nutrient Profiling Model (NPM). Their scope is similar, though not identical, to the “High in Fat, Sugar or Salt” (HFSS) foods whose promotion is already regulated.

The new Advertising Regulations will introduce:

1. A 9pm watershed: TV advertisements for LHF products cannot be displayed before 9pm on any linear broadcast services and on-demand programme services regulated by OFCOM; and
    
2. A total ban (with limited exceptions) on the placement of paid-for online ads for LHFs.

More information on these new rules can be found in our previous Law-Now, accessible here.

What is the latest position on brand advertisements?

In updated consultation guidance released in February 2025, the Advertising Standards Authority (ASA) reversed its initial position and said that brand advertisements – that is, those that do not directly feature or refer to an LHF product - could still be caught within the remit of the Advertising Regulations and be subject to restrictions. Whether a brand advertisement is caught would depend on the “identifiability test”, namely, whether the UK public could reasonably be expected to identify the ad as being for one or more LHF products (even if it does not feature them explicitly). This development altered the position in the ASA’s initial consultation and the Government’s public statements, which were that brand advertisements would be exempt from the Advertising Regulations. However the draft Advertising Regulations contained no explicit exemption for brand advertising and the updated February consultation came following legal advice given to the ASA that brand advertisements could in some cases be caught by the legislation.

The proposal was met with fierce resistance from food and consumer product retailers (many of whom threatened legal action) who argued that it unduly restricted their ability to market themselves and their brands generally. Broadcasters have also commented that such measures could damage their advertising revenues, at a time when the advertising market is already struggling. This was also at odds with the narrative of the UK government, who had indicated in its policy statement and consultation response (even if not yet on a legal footing) that brand advertisements would be exempt from the Advertising Regulations.

However, last Thursday’s (22 May 2025) statement by Ashley Dalton (Parliamentary Under-Secretary of State for Public Health and Prevention) has re-stated the Government’s intention that such brand advertising should be exempt from the Advertising Regulations and demonstrates that the Government accepts that a change in the legislation is necessary to effect it. The Government has said it will consult on a draft statutory instrument and, to allow time for this, the implementation of the Advertising Regulations will now be delayed to 5 January 2026.  CAP and BCAP are yet to publish a statement since last week’s announcement but in any event we imagine that the updated (for a third time!) implementation guidance will not come until the Statutory Instrument implementing the amendment has been laid.

Next steps

In her speech, Ashley Dalton indicated that many online platforms, advertisers and broadcasters, have made a clear and public commitment to comply “in good faith” with the restrictions as if they were coming into force from 1 October 2025. A public letter from the Advertising Association stated that an industry agreement (which includes many major television broadcasters) has been reached, in which much of the industry has committed to proceed on the basis that the Advertising Regulations will still come into force on 1 October 2025.

Many health associations have expressed their disappointment at the delay, citing childhood obesity as a serious public health issue, the addressing of which cannot be postponed any longer. In its comment on the update, the Obesity Health Alliance accused the government of “capitulating to industry demands”. Food and consumer product retailers, however, will now eagerly await the brand advertisement exemption to be put on statutory footing.

The minister’s full statement can be found here.

Comment

Many brand owners will likely breathe a (tentative) sigh of relief in response to the government’s latest statement. However, advertisers should be mindful that:

• The government is clear that, from 1 October 2025, it expects adverts for specific identifiable less healthy products not to be shown on TV between 5:30am and 9pm or (on a paid-for basis) at any time online. Accordingly, the delay in formal implementation of the legislation is not intended as a “grace” period for delayed compliance post-1 October 2025 (although clearly, new restrictions cannot be legally enforced until 5 January 2026).
   
• There is not yet a formal statutory definition for what “brand advertising” means. In her previous statement, Ashley Dalton gave the following examples of brands ads that should be permitted: “For example, brands could promote their non-product attributes, such as corporate social responsibility commitments or customer experience, or advertise the healthier products within their portfolios.” Although there remains some uncertainty as to how the regulations will apply to ads promoting brands that are predominantly or exclusively associated with a specific LHF product or a range of LHF products, we expect that an advertisement will need to be for one or more specific and identifiable LHF products in order to be within the remit of the Advertising Regulation.
   
• In response to any amendment to the wording of the Advertising Regulations, the BCAP and CAP will have to further revise their implementation guidance, which should add further clarity on the application of the new law in practice.

For further information on the Advertising Regulations and how to ensure your business is prepared, please contact one of the CMS Legal team.