Food Sector: Incoming Advertising restrictions for high fat, salt and sugar foods and allergens

(6 min read)

The food industry is facing some significant changes in the face of government targets to halve obesity by 2030 and companies are coming under pressure once again to take allergens more seriously. On 1 October 2025, further restrictions will come into force on the advertising of certain products categorised as 'less healthy' food and drink. The latest update from the government provides clarity on the services, businesses and products within the scope of the 9:00pm TV watershed. Retailers could face enforcement action and even criminally liability if they do not take heed of these new regulations. In addition, another tragic allergen-related news story has come to light concerning the death of a 13-year-old girl, who died hours after sipping a dairy milk coffee bought from Costa Coffee.

Incoming advertising restrictions for high fat, salt and sugar foods

In order to meet its ambition to halve childhood obesity by 2030, the government has set targets to reduce children's exposure to less healthy food and drink products advertising on TV and online. In April 2022, the Government introduced measures restricting advertising for less healthy food and drink during children’s TV and other programming of appeal to children. These restrictions were introduced via The Health and Care Act 2022.

On 1 October 2025, further restrictions will come into force on the advertising of certain products categorised as 'less healthy' food and drink (originally referred to in the consultation on The Health and Care Act 2022, as products high in fat, salt or sugar or 'HFSS'). Two restrictions will come into force: (i) a 9:00pm TV watershed for less healthy food and drink; and (ii) a total ban on paid-for advertising of identifiable products online, as included in the regulation and detailed below.

The latest update from the government provides clarity on the services, businesses and products within the scope of the 9:00pm TV watershed.

The latest consultation process, led by Department of Health and Social Care, relates to Secondary Legislation that proposes an exemption for Ofcom-regulated Internet Protocol Television (IPTV) services from online advertising restrictions on less healthy food and drink.

Services Scope:

The government intends to make the following advertisements and services exempt from the restrictions for paid-for online advertising of less healthy food and drink:

1.    advertisements included in services connected to Ofcom-regulated radio services;
2.    advertisements included in services distributing audio items by means of the internet; and
3.    IPTV services accessed through an Ofcom-regulated electronic programming guide (EPG).

The first exemption for Ofcom-regulated radio services has already been introduced in the Communications Act 2003, as amended by the Health and Care Act 2022 (the Primary Legislation).

The second exemption on audio items will be introduced in secondary legislation. It is proposed to introduce the third exemption, for Ofcom-regulated IPTV services, the government is currently holding a consultation on this approach, which is due to close this Thursday 10 October 2024.

Currently under the provisions introduced by the Health and Care Act 2022, advertising on IPTV services accessed via a regulated electronic programme guide (EPG) would be subject to both the broadcasting and online advertising restrictions. While the broadcast regime would permit adverts for less healthy food and drink after 9pm, the online restrictions would ban them altogether.

Given that these services would be regulated by Ofcom in the same way as other broadcast services, the current government position is for such services to be subject to the broadcast advertising restrictions only. Therefore, the current proposal, which is under consultation, is to amend the draft regulations that were consulted on in 2022, to make clear that Ofcom-regulated IPTV services will be exempted from the online restrictions.

Businesses in scope or exempt:

To ensure that the policy is proportionate, the primary legislation includes an exemption for food or drink SMEs from the restrictions on the advertising of less healthy food and drink (see section 368FA Communications Act 2003). Regulation 4 (Qualifying Business) of the Food (Promotion and Placement) (England) Regulations 2021 describes which businesses will be classified as "food or drink SMEs". The government does not intend to amend this definition. The government's stated policy aim is for any persons (including franchises) selling food or drink, who do not fall within the definition of "food or drink SME" in regulation 4, to be subject to restrictions, regardless of whether the sale of food and drink is the business' primary purpose. The government intends to align the definition of "food or drink SME" with those businesses which are not "qualifying businesses" under the Calorie Labelling (Out of Home Sector) (England) Regulations 2021.

For the exemption to apply to a business, the business must be:

1.    the person who arranges for the advertisement to be shown on TV or on-demand programme services (ODPS); or
2.    the person who pays for the advertisement to be placed on the internet; and
3.    a food or drink SME.

Retailers may still be criminally liable for their advertisements, even if they are advertising products from food or drink SMEs. It is worth noting that it is at the discretion of the enforcement officer as to whether to pursue criminal enforcement, should the terms of an improvement notice not be met and cannot be pursued until 28 days after the notice has been served. We understand that the government will provide further guidance on this point in due course.

Products in Scope:

Only advertisements for ‘less healthy food and drink’ are caught within the scope of the advertising restrictions. There is a 2-stage approach for defining a product that is considered ‘less healthy’ for the purposes of the restrictions. The product needs to:

1. fall within one of the product categories in the schedule to the draft regulations, which includes, but is not limited to: breakfast cereals, confectionary, savoury snacks, pizza, sweetened yoghurt; and
2. score 4 or above for food, or 1 or above for drink, when applying the 2011 Nutrient Profiling Technical Guidance to the 2004 to 2005 nutrient profiling model (NPM) these types of foods include: vanilla ice cream, a fruit and nut cereal bar and a Raspberry and cranberry juice drink.

We understand that the government intends to issue guidance which explains the product categories outlined in the draft regulations. It is anticipated that this guidance will be in line with guidance provided for the Food (Promotions and Placement) (England) Regulation 2021.

As certain products are already subject to separate regulatory regimes, the government’s aim is for the following products not to be caught by the advertising restrictions:

infant formula, baby food, follow-on formula, and processed-cereal based foods for infants;
total diet replacements for weight control products;
meal replacement products with an approved health claim;
food supplements; and
drinks used for medicinal purposes.

In Further News

Advertising Bans

Northeast to ban Junk food adverts on some bus and train services: In further efforts to tackle childhood obesity, the North East is to join the nine areas in the UK that have already banned the advertising of junk food on their trains and buses. The Newcastle area is the latest to join the 'AdEnough' campaign, championed by Jamie Oliver; a ban which is already in place on London buses and tubes.

Allergens

Costa Under the Spotlight for Dairy Allergy Related Death: yet another news story has come to light concerning the tragic death of a 13-year-old girl, who died hours after sipping a dairy milk coffee bought from Costa Coffee. The bereaved mother is now campaigning for stricter food safety procedures, meaningful staff training and effective product labelling at the point of service. Costa have made a statement that they will work with the Natasha Allergy Research Foundation (founded following the death of Natasha Ednan-Laperouse who died after suffering an allergic reaction to a baguette from Pret à Manger which did not disclose on its packaging that the product contained sesame seeds), to improve their food safety standards. If you have any questions in relation to food safety standards for your business, including allergen labelling and packaging, please contact David Young, Adrian Mansbridge or Eleanor Chick.

Delay to New Food Allergy Labelling: The Food (Jersey) Law 2023 which aimed to come into force in Jersey in 2025 has been delayed. The legislation would bring in stricter rules as to how ingredients are labelled, specifically in relation to allergens. Such a delay also comes as the Food Standards Agency (FSA) are advising consumers to be wary of sandwiches and dips due to the fact that mustard products may contain peanuts. This is therefore an important reminder that due diligence in relation to food safety standards throughout the supply chain, as well as the correct labelling procedures, are paramount.