Bristows - Cease & Discuss: Navigating the new rules on advertising "less healthy foods"

So what are we talking about when we refer to the new less healthy food advertising regime, Rob?

Yeah.

So stepping back at that high level, these are the restrictions on the advertising of certain food and drink products that are considered, in inverted commas, less healthy.

So The regulation of advertising these products, there's kind of three layers.

There's the hard sort of statutory restrictions in the legislation.

So that's the Health and Care Act 2022.

And then for the purposes of the day, the Advertising Less Healthy Food Definitions and Exemptions Regulations 2024.

That's what we're focusing on today.

So that's the hard legislation.

In addition to that, you've got the self-regulatory rules, so the CAP code and the BCAP code, which as we know are enforced by the ASA.

And then just to mention as well, there's the existing child protection rules, which are at section 15 of the CAP code, and that applies to all HFSS advertising directed at children, so regardless of this new legislation that we're covering today.

And the key point just really to make about that is that this new statutory regime doesn't replace the cap code, it sits alongside it.

Yeah, definitely a key point to remember.

So I think obviously there's been a major change from January of this year, and that's when the UK introduced product-based advertising restrictions rather than just these child targeting restrictions that you mentioned.

So the new restrictions now prohibit advertising for identifiable less healthy food and drink products on TV or on demand between 5.30 in the morning and 9pm.

So you've kind of got that 9pm watershed that people are familiar with.

and also in paid-for online advertising at any time.

So that's quite a big policy shift, because historically compliance centred on whether children were being targeted, but the new regime instead is asking, is this an advertisement for an identifiable, less healthy product? And if the answer is yes, the statutory prohibition may apply irrespective of the intended audience.

Yeah, and so less healthy food isn't the same as HFSS.

And we've used both terms already so far, but one of the most important legal distinctions is that terminology.

So we can't use HFSS and less healthy interchangeably.

Yeah, I think that can be really confusing.

So do you want to run us through the distinctions?

Yeah, so this legislation regulates only less healthy products, which are effectively a subset of foods commonly described as HFSS.

So a product falls within the less healthy products category if it belongs to one of a list of categories in the regulations and it scores as less healthy under the government's nutrient profiling model.

So what are we talking about when we refer to the new less healthy food advertising regime, Rob?

Yeah.

So stepping back at that high level, these are the restrictions on the advertising of certain food and drink products that are considered, in inverted commas, less healthy.

So The regulation of advertising these products, there's kind of three layers.

There's the hard sort of statutory restrictions in the legislation.

So that's the Health and Care Act 2022.

And then for the purposes of the day, the Advertising Less Healthy Food Definitions and Exemptions Regulations 2024.

That's what we're focusing on today.

So that's the hard legislation.

In addition to that, you've got the self-regulatory rules, so the CAP code and the BCAP code, which as we know are enforced by the ASA.

And then just to mention as well, there's the existing child protection rules, which are at section 15 of the CAP code, and that applies to all HFSS advertising directed at children, so regardless of this new legislation that we're covering today.

And the key point just really to make about that is that this new statutory regime doesn't replace the cap code, it sits alongside it.

Yeah, definitely a key point to remember.

So I think obviously there's been a major change from January of this year, and that's when the UK introduced product-based advertising restrictions rather than just these child targeting restrictions that you mentioned.

So the new restrictions now prohibit advertising for identifiable less healthy food and drink products on TV or on demand between 5.30 in the morning and 9pm.

So you've kind of got that 9pm watershed that people are familiar with.

and also in paid-for online advertising at any time.

So that's quite a big policy shift, because historically compliance centred on whether children were being targeted, but the new regime instead is asking, is this an advertisement for an identifiable, less healthy product? And if the answer is yes, the statutory prohibition may apply irrespective of the intended audience.

Yeah, and so less healthy food isn't the same as HFSS.

And we've used both terms already so far, but one of the most important legal distinctions is that terminology.

So we can't use HFSS and less healthy interchangeably.

Yeah, I think that can be really confusing.

So do you want to run us through the distinctions?

Yeah, so this legislation regulates only less healthy products, which are effectively a subset of foods commonly described as HFSS.

So a product falls within the less healthy products category if it belongs to one of a list of categories in the regulations and it scores as less healthy under the government's nutrient profiling model.