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.
Please note that any and all advice provided in this, and other secondary resources, are given in good faith and reflect 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.
BackgroundInclusions, exclusions and exemptions
The brand advertising exemption – realistic imagery
The brand advertising exemption – ‘visually indistinguishable’
Case studies
Background
In December 2025, new rules were introduced into the CAP and BCAP Codes which restrict children’s exposure to certain types of food and drink advertising. The 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 food and drink products (LHF).
The less healthy food and drink product (LHF) 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
References in the singular (“product”) should be taken also to include the plural (“products”), and vice versa.
The rules came into force on 6 January 2026.
Inclusions, exclusions and exemptions
The ASA Guidance which accompanies the LHF rules sets out the factors which are likely to bring an ad in scope of those 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 Section 4 (Determining products in scope), Section 5 (Nature of the advertiser), Section 6 (Media and scope), Section 7 (The brand advertising exemption), and Section 8 (The identifiability test).
This article will consider some aspects of the brand advertising exemption (Section 7), looking in particular at the use of ‘realistic imagery’ (Section 7.4). Because precedent cases that interpret the rules and ASA Guidance are currently quite 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. They might also wish to seek independent legal advice.
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.
Section 7 of the ASA Guidance explains the basis of when the brand advertising exemption will likely apply and when it will not. The Guidance indicates that there is an allowance for some brand and product range advertising but, we understand that if an ad ‘depicts’ an identifiable LHF product then the brand advertising exemption will not apply. The Guidance sets out in some detail how an ad might depict a specific LHF product (Section 7.2), including how a combination of brand techniques might have the effect of depicting a specific less heathy product (Section 7.2.5).
The Guidance also sets out the position in relation the use of brand and range names which are the same as specific less healthy products (Section 7.3).
The brand advertising exemption – realistic imagery
A food or drink is ‘less healthy’ if it meets two tests. Firstly, it must be classified as HFSS according to the Department of Health and Social Care’s Nutrient Profiling Technical Guidance. Secondly, it must also fall within one of the 13 food or drink categories set out in the regulations which is explained further in this government guidance on Restricting advertising of less healthy food or drink on TV and online: products in scope - GOV.UK. This two-part test is set out in more detail in Section 4 of the Guidance.
We understand that in practice, if an ad meets the ‘identifiability test’ as set out in Section 8 of the Guidance and explored to an extent in this CAP Advice on Less healthy products (LHF) : General - ASA | CAP the ASA will then likely have to consider whether that ad might fall under brand advertising exemption set out in Section 7.
Section 7 of the ASA Guidance explains that there will be circumstances under which the brand advertising exemption might or might not apply and includes a specific section on the use of realistic imagery in ads (Section 7.4).
When assessing whether the brand advertising exemption set out in Section 7.4 will apply to any individual ad, we understand that the ASA would likely consider which of the three scenarios set out below will apply:
Scenario 1 - The ad depicts a specific less healthy food or drink product sold by the advertiser and therefore the brand advertising exemption does not apply (Guidance Section 7.2).
Scenario 2 - The ad depicts only a specific non “less healthy” food or drink product sold by the advertiser and clearly identifies that specific non-less healthy product (for example by stating its name). Such an ad is likely not in breach of the “less healthy” food rule.
Scenario 3 - The ad features a realistic image of a food or drink product sold by the advertiser but does not identify which specific product it is. In that scenario we understand the ASA will likely assess whether the realistic image of the product in the ad is ‘visually indistinguishable’ from any specific less healthy product sold by the advertiser. We understand that this will be the case irrespective of whether the realistic image in the ad is of a less healthy product, or a non-less healthy product. If it is visually indistinguishable from a less healthy product sold by the advertiser, the ad is potentially in breach of the LHF rule. This is explored further in Section 7.4 of the Guidance.
The brand advertising exemption – ‘visually indistinguishable’
As indicated above in Scenario 3 and as explained in Guidance section 7.4, we understand that if an ad includes a realistic image of a product (when that image is not only of the packaging), which is visually indistinguishable’ from an LHF product sold by the advertiser then the brand advertising exemption will likely not apply. That is even the case if the realistic image of a non-LHF food, but is not labelled as such in the ad.
Any consideration of the test will likely take into account multiple factors of a products appearance, including any natural variation that might occur such as with pizza toppings or hand-made or decorated products.
Due to the potential risks associated with the use of realistic imagery, we recommend that advertisers exercise caution when including unqualified realistic imagery of any products they sell, including when the intention is merely to represent generic products.
Case studies
Case study one
A paid-for social media ad for a pizza delivery company included a realistic image of an unidentified 10-slice pizza.
The advertiser explained which pizza from their menu was shown, and confirmed that it wasn’t HFSS (and therefore was not “less healthy”). As such, the ASA considered the ad did not depict a specific LHF (Scenario 1 – see above). However, because the pizza was not identified in the ad, the ASA considered the ad also did not depict a specific non “less healthy” product (Scenario 2 – see above).
The ASA therefore considered whether the image of the pizza in the ad was visually indistinguishable from all “less healthy” pizzas sold by the advertiser as set out in Scenario 3 (see above). It considered various aspects including the inclusion (or exclusion) of meat, vegetables and sauce toppings alongside the variety of crust types as shown on the advertiser website. The ASA found that that the pizza in the ad was visually indistinguishable from one of the pizzas sold by the advertiser. However, the ASA established that this pizza was non-HFSS (and therefore not LHF). The ASA found that the pizza in the ad was therefore visually distinguishable from “less healthy” products sold by the advertiser and therefore concluded that the ad did not breach the Code (Papa Johns Pizza, 8 July 2026).
A similar assessment was made in relation to two paid-for social ads for another pizza advertiser (Domino’s Pizza UK & Ireland Ltd, 8 July 2026).
Case study two
A TV, VOD ad and three paid-for social media ads for a fast-food chicken restaurant featured realistic images of unidentified chicken burgers alongside two unidentified cola drinks. The TV and VOD ad also included images of unidentified breaded chicken fillets.
All of the ads also included a reference to the “double deal” offer that was available at that time.
The advertiser identified the burger in the ad stating that nutrient profiling demonstrated that it was not an HFSS food. The ASA understood that although the image was not of an LHF food, the specific burger was not identified in the ad.
When considering the three scenarios set out above, in this case the ASA considered the ad did not depict a specific less healthy product (Scenario 1) and did not depict a specific non-less healthy product by identifying it as such in the ad (Scenario 2). It therefore had to consider whether the realistic image in the ads was visually indistinguishable from “less healthy” burger products sold by the chicken restaurant. The ASA found that there were clear visual differences between the burgers in the ad and most of the burgers sold by the advertiser. The ASA considered that the burger in the ad was visually indistinguishable from one particular burger, but that this burger was not HFSS and therefore was not an “less healthy” product. The ASA therefore considered that the realistic images of the chicken burger in the ad were visually distinguishable from the “less healthy” products sold.
The ASA found that the realistic images of the soft drinks were visually indistinguishable from all three cola products available from the restaurant. However, the advertiser was able to show that all three available drinks did not contain added sugar ingredients and were not HFSS and consequently, none of the available brown soft drink products were “less healthy” products.
Taking into account matters like the natural variations in the product, the ASA found the realistic image of the chicken fillets were visually indistinguishable from a chicken fillet product sold by the advertiser. However, because that chicken fillet sold by the advertiser was not HFSS, it was not a “less healthy” product.
The ASA also found that that although there were some similarities with other chicken products, the fillets in the ad were distinguishable from those products.
The ASA therefore concluded that the ads only depicted realistic images that were visually distinguishable from LHF products sold by the restaurant and as such, the brand advertising exemption applied and the ad did not breach the Code (Kentucky Fried Chicken (Great Britain) Ltd, 8 July 2026).
Case study 3
A paid-for social media ad for a food delivery company featured a burger from a named restaurant. The ad featured a realistic image of a burger in with bun.
The ASA noted the burger was not identified in the ad but that consumers would reasonably identify the ad as being for the delivery company, and that this service included delivery of the specific burger shown alongside the full range of items on the featured restaurant’s menu. It was therefore considered that the ad met the Identifiability Test (Section 8 of ASA Guidance and CAP Advice on Less healthy products (LHF) : General - ASA | CAP).
The advertiser identified the burger in the ad demonstrating that nutrient profiling showed it was not an HFSS food and was therefore a non “less healthy” product. However, the ASA noted that this non “less healthy” burger was not identified in the ad.
When considering the three scenarios set out above, in this case the ASA considered the ad did not depict a specific less healthy product (scenario 1) and did not depict a specific non-less healthy product by identifying it as such in the ad (scenario 2). It therefore considered the ad under scenario 3.
The ASA found that the image of unidentified burger in the ad was visually indistinguishable from two burgers on the advertiser’s website, one of which was meat-based and the other which was plant-based. The ASA found that neither of those burgers were HFSS and therefore not “less healthy”. As such, the realistic image of the burger in the ad was visually distinguishable from specific LHF burgers sold by the burger company and the ASA subsequently ruled the ad did not fall within the scope of the LHF rule and did not breach the Code (Uber Eats UK Ltd, 8 July 2026).
Marketers who have read the ASA Guidance, the accompanying secondary advice resources, CAP Advice articles and the referenced rulings and are still unsure, can contact the CAP Copy Advice team for further advice and guidance.