Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Background
In November 2025, the ASA published new rules in the CAP and BCAP Codes which restrict children’s exposure to certain types of food and drink advertising. The publication of the new rules were accompanied by ASA Guidance alongside secondary advice resources.
These rules reflect specific provisions of the Communications Act 2003 (as amended), which place restrictions on the advertising of certain types of HFSS product – those categorised as less healthy products (LHF).
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 9:00pm2;
• Ofcom-regulated on-demand programme services (“ODPS”) from including advertising and sponsorship for identifiable less healthy products between 5:30am and 9:00pm3; 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 time4. References in the singular (“product”) should be taken also to include the plural (“products”), and vice versa
The rules came into force in January 2026.
This AOL reflects the first series of rulings which were published in April 2026.
Inclusions, exclusions and exemptions
The ASA Guidance sets out the factors which are likely to bring an ad in scope of the LHF rules. It also sets out several exclusions and exemptions which might take an ad out of scope of the rules. The inclusions, exclusions and exemptions are set out in detail in the Guidance in Sections 4 (Determining products in scope), 5 (Nature of the advertiser), 6 (Media and scope) and 7 (The brand advertising exemption).
This article will consider some aspects of some the relevant inclusions, exclusions and exemptions where they are set out in ASA precedent. However, because precedent cases that interpret the rules and ASA Guidance are currently limited, marketers should make sure they also carefully review the ASA Guidance and secondary advice resources in full to establish if their ad is likely to be caught by the restrictions set out in the rules.
Products in scope – Before determining if the advertising restrictions set out in the rules might apply to a particular product, the ASA would need to establish if the food or drink being advertising is defined as an LHF product. Section 4 of the Guidance sets out that this is determined through a two-part test which defines an LHF product as one which falls within one of the categories set out in The Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 (which explained further in this DHSC Guidance) and which is also classified as being HFSS using the DHSC Nutrient profiling model.
Nature of the advertiser – The Guidance states that 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. Marketers should review Section 5 of the Guidance which directs users to the sections of the Regulations which set out the definition of an SME and sets out when the SME exemption might, or might not, apply.
Media and scope – Section 6 of the Guidance sets out the media in scope of the new LHF rules and also indicates which media might not be scope. There is more complexity in relation to the paid-online rule (15.19) which is explored throughout Section 6.3 of the Guidance.
Brand advertising exemption – Section 7 of the Guidance sets out that there will be some circumstances under which a brand advertising exemption might apply. Marketers should also pay close attention to definitions of ‘brand advertisement’ and a ‘range of products’ alongside the sections on brand names and realistic imagery. We understand from the Guidance that if an ad depicts a specific less healthy product, the brand advertising exemption will not apply. This is set out in detail in Section 7.2 of the Guidance.
Marketers are reminded that if the restrictions set out in the LHF rules do not apply, the HFSS rules in the Codes will continue to apply to HFSS product ads. Please review Guidance on identifying brand advertising that has the effect of promoting an HFSS product - ASA | CAP alongside CAP Advice on Food: HFSS Nutrient Profiling - ASA | CAP, Food: HFSS Media Placement - ASA | CAP and Children: Food - ASA | CAP.
The identifiability test
If none of the exemptions detailed in parts 4, 5, 6 and 7 referred to above and set out in the Guidance apply, an assessment of the advertisement under Section 8 of the Guidance will be needed to ascertain whether an individual ad is likely to be restricted in some media under the less healthy product advertising rules.
The ASA Guidance indicates that 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.
There are likely to be circumstances under which the ASA will consider an ad as being for a LHF product (or products) under the identifiability test. However, we understand from the Guidance that this doesn’t necessarily mean the less healthy restrictions will apply due to the various exclusions and exemptions summarised above.
We would recommend marketers therefore refer back to the exemptions set out in the Guidance when considering whether any particular ad is likely to be problematic.
Whilst there are learnings from the case studies below on how the ASA will determine whether an ad is considered to meet the identifiability test, decisions will be made on a case-to-case basis depending on the presentation of the ad and how it is likely to be interpreted by the average consumer.
ASA precedent thus far suggests that where ads prominently feature an identifiable less healthy product, the ad would likely be understood as being for that product, therefore meeting the identifiability test. If such ads are otherwise not exempt or excluded from the rules, the media prohibition is likely to apply.
However, where an LHF product is not prominently featured and/or where the consumer is unlikely to see the ad as being for a fleeting or low prominence inclusion of an identifiable less healthy product, the identifiability test is less likely to be met. In such circumstances the restrictions set out in the rules are not likely to apply irrespective of whether or not the ad also meets any of the exclusions or exemptions.
Case studies
Case study one
The ASA investigated complaints about two paid-online ads (a banner ad and a display ad) for a supermarket. The ads included images of specific products sold at the supermarket including beef joints, chicken skewers, a tube of Pringles and several confectionary products.
The ASA made an assessment of the LHF status of the products using the two-part test set out in Section 4 of the Guidance (and summarised in this article) and determined that the confectionary products were classed as LHF but that the rest of the featured products were not, either because the product did not fall within a LHF category (as set out in the legislation) and/or was not considered to be HFSS when assessed under the nutrient profiling model.
The ASA considered the ad under the identifiability test set out in Section 8 of the ASA Guidance and considered it would be understood as being for all of the featured products.
The ruling did not include an explicit assessment of the nature of the advertiser as there was no suggestion that Iceland was an SME.
The ruling did not include an explicit assessment of whether the ad was out of scope through its media because the ad clearly appeared in paid-for space online (a banner ad and a display ad) on the Daily Mail website.
The ruling did not include an explicit assessment of the brand advertising exemption because the ad depicted a specific less healthy product.
Because none of the exclusions or exemptions set out in the Guidance applied, ASA therefore ruled that these were paid ads for identifiable less healthy products, and they therefore breached the Code (Iceland Foods Ltd, 15 April 2026).
Case study two
The ASA investigated a social media post by an influencer which showed them buying and eating two bakery products from a supermarket. The ad included video images of those products in-store and also included a brief image of another bakery product that was otherwise not referenced in the ad.
The ASA reviewed the ad under the identifiability test set out in Section 8 of the ASA Guidance and considered it would be understood as being for the two bakery products that were purchased and eaten but that it was not an ad for the third product which only appeared fleetingly.
The ASA made an assessment of the LHF status of those two products using the two-part test set out in Section 4 of the Guidance (and summarised in this article) and determined that although both pastry products fell under one of the LHF categories set out in the legislation, only one of them was defined as HFSS when assessed under the nutrient profiling model. This meant that only one of the two products in the supermarket promotion was an LHF product.
The ruling did not include an explicit assessment the nature of the advertiser as there was no suggestion that the supermarket was an SME.
The ruling did not include an explicit assessment of the media and scope exemptions because the advertiser had confirmed that it had paid for the ad to be placed on the internet.
The ruling did not include an explicit assessment the brand advertising exemption because the ad depicted a specific less healthy product.
Because none of the exclusions or exemptions set out in the Guidance applied, ASA therefore ruled that this was a paid ad for an identifiable less healthy product, and that it therefore breached the Code (Lidl Northern Ireland Ltd, 15 April 2026).
Case study three
A social media post by an influencer showed them buying and eating three products from a kebab restaurant and takeaway in-store menu. The ad included a video of those products being eaten and included a verbal reference to a third product which was on offer. It also included very fleeting images of a can of diet coke either at the edge of the frame or out of shot.
The ASA reviewed the ad under the identifiability test set out in Section 8 of the ASA Guidance and considered it would be understood as being for the four food products. However, it did not consider the ad would be understood as being for the diet coke as it was incidental and only appeared fleetingly.
The ASA made an assessment of the LHF status of the four food products using the two-part test set out in Section 4 of the Guidance (and summarised in this article) and determined that all four products were not classed as HFSS under the nutrient profiling model. As such, those four products were not considered to be LHF.
The ASA ruled that this was not an ad for a LHF product and the ad did not breach the Code (GDK International Ltd, 15 April 2026).
Case study four
The ASA investigated a TV ad for an online travel agency which advertised the free airport lounge access which was available to those with five start bookings. The ad featured shots of the family in the lounge, including a shot of a child reaching for a chocolate ring doughnut, and then some grapes.
The ASA reviewed the ad under the identifiability test set out in Section 8 of the ASA Guidance and considered it would be understood as being for the free airport lounge experience, including the complementary foods and drinks that were included. It considered that although a chocolate ring doughnut was shown, it was representative of the benefits of the lounge access and that consumers who viewed the ad would not understand the ad as being for the doughnut.
Because the ad did not meet the identifiability test set out in Section 8 of the Guidance, the ASA ruled the ad was not for an identifiable less healthy product and the ad did not breach the Code (On The Beach Ltd, 15 April 2026).