Less Healthy Foods – Secondary Advice Resources

Introduction

This resource is the first in a series of secondary advice resources from the CAP Copy Advice team on the topic of Less Healthy Foods (LHF). Marketers can also access our bespoke Copy Advice service for tailored guidance. Further resources will be made available in due course.

The purpose of this resource is to help marketers and other stakeholders navigate the ASA’s Guidance with confidence by directing readers to relevant parts that address particular questions. It must be read alongside the ASA’s Guidance, which is the primary resource for understanding how the ASA will assess ad content under the LHF rules.

Disclaimers

Please note that any and all advice provided in this, and future secondary resources is given in good faith and reflects the Copy Advice Team’s understanding of the rules and the ASA’s Guidance but does not bind CAP or the ASA. It is not a substitute for the rules or the formal guidance does not set out the ASA’s intentions concerning the application of the restrictions, and does not constitute legal advice.

You should be aware that, although it is designed to reflect the law, the Code does not cover marketers’ legal or other obligations, which remain their responsibility. While the new rules reflect restrictions set out in legislation, they are enforced by the ASA through the application of rules in the UK Advertising Codes and in accordance with their published case-handling procedures. Ofcom is the statutory backstop for these rules.

For more information about the ASA’s remit see the Introduction of the BCAP Code, the Scope of the Code Section of the CAP Code and the AdviceOnline entry on Remit: General as a starting point.

For pre-publication advice on specific non-broadcast ads, contact the Copy Advice team directly. For advice on specific TV ads, contact Clearcast. Neither party is able to provide advice on the underlying legislation, and such questions should be directed to appropriate legal advisors.

How to approach compliance

Please note: Liability arrangements for who is responsible for compliance with these rules vary between the three rules; see part 5.5 of the ASA’s Guidance which explains how responsibility is allocated.

Affected businesses must base their decisions on the explicit wording of the rules and the formal guidance. There are a number of different tests and criteria that help to determine the scope of the restrictions. As such, compliance considerations can be approached in any number of different ways when assessing the content and context of a particular ad.

In the Copy Advice Team’s view, if an advertiser is concerned that there is a good chance that an ad promotes particular LHF products, or an LHF-related range or brand, they may find it useful to focus on the various exemptions first (for example, if the content of the ad meets the test for the brand ad exemption as detailed in Part 7 of the guidance, other considerations become less relevant).

Alternatively, if they believe an ad is highly unlikely to meet the identifiability test as detailed in Part 8 of the guidance (for instance, because the ad obviously promotes only a specific non-LHF product), it might be more useful to start by considering the identifiability test because ads that don't meet the criteria are out of scope irrespective of other parts of the policy.

Where an advertiser is unsure whether the rules apply to them or their product(s), it might be a useful starting point to consider whether the intended media and/or the products/advertiser are within scope of the rules before conducting a fuller assessment as to whether the ad is likely to meet the identifiability test and, if it is, whether it might be exempted under the brand ad exemptions. If the intended media or the product/advertiser are not within scope, the rule(s) on LHF would not apply – though other rules in the Code(s) may, including rules on ads for food and soft drinks high in fat salt or sugar (HFSS ad rules).

Whatever approach they choose, marketers are best advised to consider the rules and formal ASA guidance carefully and document their decision making fully to ensure that they are able to provide a robust response to any future approach by the ASA.

Is the media the ad will appear in within scope of the rules?

As per 1.2.2 of the ASA’s Guidance, the less healthy product advertising rules prohibit:

• Ofcom-licensed television services from including advertising and sponsorship for identifiable less healthy products between 5:30am and 9:00pm;
• Ofcom-regulated on-demand programme services (“ODPS”) from including advertising and sponsorship for identifiable less healthy products between 5:30am and 9:00pm; and
• paid-for advertisements for identifiable less healthy products intended to be accessed principally by persons in the UK from being placed on the internet at any time.

Ofcom-licenced television services (TV) and Ofcom-regulated on-demand programme services (ODPS)

Relevant ads broadcast or made available to view between 5:30am and 9:00pm must be compliant with the TV or ODPS LHF rules, as applicable. Between 9:00pm and 5:30am CAP and BCAP’s existing HFSS rules, and other relevant rules, will continue to apply.

Placed on the internet (Online): General

See 6.3.1 to 6.3.3 of the ASA’s Guidance for an explanation of the way the rule applies online. The CAP Code Section on the Scope of the Code and the AdviceOnline entry on Remit: General are also useful points of reference setting out the full range of media covered by the CAP Code more broadly.

Placed on the internet (Online): Influencers

See 6.3.6 of the ASA’s Guidance. There is no statutory definition of an influencer, but restrictions could apply to any influencer content that meets the payment test. CAP’s separate guidance on influencer marketing provides additional context.

Am I an advertiser within the scope of the restrictions?

As per 5.1.1 of the ASA’s Guidance – The television and ODPS rules do not apply to advertisements arranged by or on behalf of food or drink SMEs, and the online restriction does not apply where the person paying for an advertisement to be placed is a food or drink SME.

Is my product in scope of the restrictions?

See 4.1.1 of the ASA’s Guidance. This summarises the two-part test you must follow and provides links to detailed resources to help you determine whether a product is classified as LHF or non-LHF. The ASA’s Guidance does not go into detail as this is set out in legislation and guidance resources from the Department of Health and Social Care (DHSC). Advertisers must refer to these when determining product status, particularly in the event of an ASA complaint. See 4.2.1 and 4.3.1 of the ASA’s Guidance for more information.

Is the content of my ad likely to meet the identifiability test?

As set out at 8.1.1 of the ASA’s Guidance, the test determining whether an advertisement is covered by the restrictions is set out in law and states that a less healthy product is "identifiable", in relation to advertisements, if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that product.

Please note: the identifiability test is the scope test in the primary legislation. Ads that meet this test are only potentially subject to restrictions. Marketers must consider the other parts of the guidance to determine whether an ad is likely to be compliant with the rules that apply.

Does the content of my ad meet the brand exemption?

See 7.1 to 7.4 of the ASA’s Guidance for information about the exemption from the less healthy product advertising restrictions for “brand advertisements”.

Brand exemption: General

Brand exemption: Products and ranges

Brand exemption: Logos and branding techniques