It can confidently be predicted that one legacy of the COVID-19 crisis is the desire for change reflected by consumers positively choosing “healthy” foods.
It is with less confidence that we can predict how that legacy will be embedded in the UK food regime. The first challenge is in reaching a consensus on which food is “healthy” (good) and which is “unhealthy” (bad). The terms “junk food” and “unhealthy” are current shorthand for foods that are high in fat, sugar and salt (“HFSS”).
Proposals to reduce HFSS
An HFSS product is defined as “a food or soft drink that is high in fat, salt or sugar as classified by the Department of Health (“DoH”) nutrient profiling model” (“NPM”). It should be noted that this is a longstanding UK definition that is not shared by other jurisdictions. The concept of a nutrient profile referenced in the EU food regulatory scheme has not to date been achieved.
Current advertising restrictions
An “HFSS product advertisement” is any advert covered by the Advertising Standards Agency (“ASA”) Code of Non-broadcast Advertising and Direct & Promotional Marketing (“CAP Code”), not including packaging or point-of-sale materials, that directly promotes an HFSS product or has the effect of promoting an HFSS product. As such, it is important to be aware that even if the actual HFSS product does not feature, the branding in the advert could still have an effect of promoting an HFSS product.
The restrictions are twofold, namely (1) HFSS advert placement restrictions and (2) content restrictions. For placement restrictions, this means that where children under the age of 16 account for over 25% of the audience of the advertisement, it cannot be used to promote an HFSS product.
HFSS content restrictions apply where the content of the advert directly targets children under the age of 12 years. In such cases, the advert must not include a promotion, licensed character or celebrity popular with children. The prohibition does not apply to advertiser-created equity brand characters (puppets, persons or characters), which may be used by advertisers to sell the products they were designed to sell.
Despite these restrictions, the UK Government still felt that more could be done to reduce obesity and improve eating habits. Following a consultation, the Government has published the next stage of its campaign to halve childhood obesity by 2030. Recognising that many young people spend far more time online than watching TV, the plan is to extend restrictions to both TV and online broadcasts.
Changes coming for TV and online advertising
Current restrictions are deemed insufficient. Ofcom research suggests that peak viewing time for children is between 6pm and 9pm. However, the proposal is no longer simply directed at young people. To meet the objective of reducing exposure to HFSS advertising, the UK Government will introduce the following measures simultaneously at the end of December 2022:
A 9pm TV watershed on all advertising of HFSS products (not limited to children).
A total restriction of paid for advertising of HFSS advertising online (i.e. at all times).
A 9pm watershed on all advertising of HFSS products on on-demand programme services (“ODPS”), including video on demand, which are regulated by Ofcom (i.e. under UK jurisdiction).
Impose on all ODPS that are not regulated by Ofcom (i.e. outside UK jurisdiction) the same restriction as applies to paid for advertising of HFSS online (i.e. this will be prohibited at all times). 
The products in scope are set out in detail in Annex I to the proposal and will include the categories of soft drinks, breakfast cereals, crisps, ice cream, yoghurts, pizzas and certain types of ready meals. If a product is included on the category list, then the NPM formula will be applied to determine whether the individual product is HFSS.
Changes coming for in store and online sales
The proposal is to introduce legislation to end the promotion of HFSS products by volume (e.g. buy one get one free) and by location (e.g. end of aisle) both online and in store in England.
The proposed store restrictions will apply to “pre-packed products” as defined in the Food Information Regulations 2014 (“FIR”). The promotional restrictions will also include out of home categories including main meals, starters, sides, small plates and sandwiches. However, complete meal deals such as 2-for-1 offers will be allowed if these are for “out of home” eating. The reasoning seems to be that the promotion is unlikely to involve an individual doubling their HFSS intake by simply reducing the cost for two people to eat out.
The proposed location restrictions to apply to:
store entrances, lobbies, foyers and their online equivalent (e.g. the site entry page);
aisle ends and island bin displays and their online equivalent (e.g. pop ups); and
checkouts (including queuing aisles) and their online equivalent (e.g. the shopping basket).
Examples of the proposed volume restrictions on HFSS products are restrictions on “buy one get one free” and “3 for 2” deals (multi- buys) and “[X]% more free” offers.
The online restrictions will be limited to “paid for” platforms, which will cover any space where a third party has had to pay the owner to display content.
In contrast, brands’ own websites are “owned media” (any online property owned and controlled by the brand) and will be out of scope. This is to ensure that brands can continue to talk about their products in the spaces they own. Adults can go to “owned media” brand sites so that factual information can be shared (e.g. allergen ingredients) in a brands’ own online space. However, the brand must retain full editorial control and ownership over content, so must retain control over the relevant blog, website or social media channel.
Brand advertising can continue online and on TV after 9pm provided there are no identifiable HFSS products in the adverts.
This means that a food business sponsoring a team that has both HFSS and non-HFSS products can still promote the brand. However, the separate ASA rules on sponsorship and, for instance, use of mascots would still apply. The reasoning behind this is to ensure brands are not pigeonholed or made to be synonymous with HFSS products. This might discourage reformulation, as some businesses may instead offer both HFSS and non-HFSS versions of the same product.
If there are a group of products displayed, they must all be non-HFSS to avoid the ban.
Also exempt are SMEs with 249 employees or less that pay to advertise HFSS; audio only; broadcast radio; business to business communications and online transactional content (so that the buying and selling of products continues and consumers have enough information at point of sale).
Liability and enforcement
Broadcasters and ODPS under UK jurisdiction will be liable for breaches of the HFSS TV watershed rules, whereas advertisers will be liable for breaches of the online HFSS restrictions and for non-UK ODPS breaches of the restrictions.
The regulator will decide on the definition of advertiser.
Ofcom will be the statutory regulator but will have discretion to appoint a day-to-day regulator to carry out investigations. This is likely to be the ASA, which will use existing regulatory mechanisms like name and shame and takedown requirements. But if these are not enough, it is expected that the ASA will refer back to Ofcom, which can use information gathering powers and issue civil sanctions such as fines.
Although the location and volume reforms were originally planned to take effect in April 2022, the Government recently announced that it will delay their implementation for 6 months. This will provide business with more time to consider the implications and prepare for the changes. It will also mean that both the promotional and advertising restrictions on HFSS are all rolled out at the same time, at the end of 2022.
What is clear is that retailers and brands need to start testing now for HFSS so that the so called “bad” HFSS products are identified. However, retailers and brands should not just see this as “banning the bad” – the legislation will also highlight the many “good” food products and will give retailers and brands a platform to promote healthy food options, whether original products, reformulated products or entirely new product developments.
For more information, please contact Fiona Carter or Laura Swithinbank.
Co-authored by Sam Porter.