Background
Summary of Council decision:
Two issues were investigated, of which one was Not upheld and one Upheld.
On 5 January 2026, new rules in the CAP and BCAP Codes on the advertising of “less healthy” food and drink products came into force.
The rules were supported by additional guidance, “Advertising of less healthy food and drink products”, which set out various tests and exemptions relevant to the ASA’s approach to assessing individual ads under the relevant Code rules.
The rules and guidance reflected the requirements of the Communications Act 2003, The Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 (the “Less Healthy Food Regulations 2024”), and The Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025) (the “Brand Advertising Exemption Regulations 2025”).
Ad description
A paid-for Instagram ad and webpage for Costcutter and Cadbury, seen on 12 February 2026:
a. The paid ad on Instagram featured a cartoon-style animated video. Text in the top right-hand corner stated, “Sponsored by Cadbury”. The Costcutter logo appeared in the bottom right-hand corner. On-screen text stated “SPIN to WIN Cadbury Treats ^^ Swipe up to play” underneath a rabbit’s head popping out of a hole. Coloured egg shapes spun quickly in a semi-circle above the rabbit’s head, gradually slowing to a stop. The egg shapes included a red egg with the text “X Not this time” on it, and purple, light blue and yellow eggs with text “Cadbury treats” on them. Clicking on hyperlinked text “Learn more” took consumers to ad (b).
b. The webpage, on www.bestwayretail.co.uk, featured Cadbury and Costcutter logos at the top and bottom of the page. Large text stated, “SPRING has finally SPRUNG” followed by information about the “SPIN to WIN” promotion, including “We’ve teamed up with Cadbury (Mondelez) to bring you a chance to win one of many prizes, including a Cadbury Easter Egg Chocolate Sharing Hamper to bounce into Easter”. The webpage included photographic images of the packaging of Cadbury products: Cadbury Biscoff Filled Egg; Cadbury creme egg; Cadbury Mini eggs; Cadbury Mini eggs bar; and Cadbury creme egg bar. Three images also included prices for the products. Another image showed an egg wrapped in purple foil with the Cadbury logo in gold text.
Issue
Bite Back, a food campaigning organisation, challenged whether:
- ad (a) was a paid ad for an identifiable less healthy food product placed on the internet; and
- ad (b) was a paid ad for an identifiable less healthy food product placed on the internet.
Response
1. & 2. Costcutter Supermarkets Group Ltd t/a Costcutter and Mondelez Europe Services GmbH – UK branch t/a Cadbury (Mondelez) provided similar comments.
They said Costcutter offered off-the-shelf promotional packages to businesses, which included elements such as paid social media advertising and the creation of a bespoke landing page on a website owned and managed by Bestway Retail Ltd, an affiliate company to Costcutter. The “SPIN to WIN Cadbury Treats” promotion referenced in the ads was the result of a ‘Seasonal Takeover’ package purchased by Mondelez.
Both advertisers noted that the rule restricting the advertising of “less healthy” foods on the internet applied only to paid advertising. CAP’s Advertising Guidance on the “Advertising of less healthy food and drink products” (CAP’s Guidance) noted the prohibition on paid ads would not apply to advertisers’ own marketing communications appearing on their own websites, or in other non-paid-for-space online under their control such as marketers’ own social media channels or apps where no payment for the placement of an ad was involved.
Because Mondelez was conscious of the requirements of the Code, they had agreed with Costcutter in advance to vary the ‘Seasonal Takeover’ package so that Mondelez would not make any payment for advertising space on www.bestwayretail.co.uk. Mondelez paid a lower fee for the varied package which included the social media element including paid ads such as ad (a), but no associated landing page. They said this was agreed by phone and there was no written contract or agreement.
The content on the landing page was designed by Costcutter, without input or control from Mondelez. Mondelez also noted that Costcutter was the promoter of the prize draw, as stated in the promotion’s terms and conditions. The landing page comprised Costcutter’s own marketing of its collaboration with Cadbury in the “SPIN to WIN” promotion. It also promoted Costcutter’s own seasonal “Spring Deals” offer in relation to specific Cadbury products sold as part of Costcutter’s overall business.
Mondelez and Costcutter considered that because no payment had been made for ad (b) to be placed on the internet it did not fall within the scope of the rule.
With regard to ad (a), Costcutter created ad (a) and, via an agency, paid for it to be placed on Instagram; both advertisers accepted it fell within the scope of the rule on that basis. They understood that a further requirement for an ad to be in scope was “if persons in the UK (or any part of the UK) could reasonably be expected to be able to identify the advertisement as being for that product” (the identifiability test). They noted, however, that brand advertisements were exempt from the restrictions.
Ad (a) promoted a prize draw in which participants had a chance to win products in the Cadbury range. They said the only branding in the ad was the Cadbury and Costcutter logos; no logo or name of a specific less healthy food was used. No identifiable products that were available for consumers to purchase were included, neither was there any photographic nor realistic imagery. The eggs were highly stylised and abstract cartoon-style representations of unbranded and non-specific eggs in varying colours. They referred to relevant parts of CAP’s Guidance. The advertisers therefore believed ad (a) was a brand ad and, as such, exempt from the rule.
Costcutter and Mondelez understood that Bite Back believed that because the landing page featured pack shots of specific Cadbury products, having clicked through to it from ad (a), consumers could reasonably be expected to identify that ad (a) was also for those less healthy products, and would therefore be in breach of the Code. Costcutter and Mondelez strongly disagreed.
They considered it was clear from the phrasing of the identifiability test in the Code that the test was whether it was possible to identify, from the ad itself, an identifiable product. They said that position was supported by CAP’s Guidance, which noted that the ASA would place weight on the content of an ad, and assess it from the perspective of a notional average consumer. They said that if the identifiability test involved information which the average consumer obtained at any other stage of their journey, it would bring within scope of the rule a wide range of non-paid-for online spaces, accessible via links in paid ads. That would expand its scope beyond paid-for advertising itself. They therefore considered that under Point 1 of the complaint, the ASA should assess ad (a) in isolation, and not consider other factors or other content which consumers might see at a later stage of their journey.
Assessment
1. Not upheld
The CAP Code required that persons must not pay for ads for an identifiable less healthy food or drink product to be placed on the internet.
The ASA understood that Costcutter had paid for ad (a) to appear on Instagram, via an agency. We considered Costcutter had paid for the ad to be placed on the internet. Additionally, we noted that paid social media ads were included as part of the Seasonal Takeover package purchased from Costcutter by Mondelez Europe Services GmbH – UK branch t/a Cadbury (Mondelez). We therefore considered that Mondelez had also paid for ad (a) to be placed. We concluded that both Costcutter and Mondelez were responsible for paying for ad (a) to be placed on the internet.
The test determining whether an ad was covered by the restrictions was set out in the Communications Act 2003 section 368Z14, as reflected in Code rule 15.19. A less healthy product was “identifiable”, in relation to ads, if persons in the UK could reasonably be expected to be able to identify the ad as being for that product (the identifiability test). We considered that in identifying what an ad was “for”, consumers’ understanding was likely to be influenced by any material in a link in an ad which consumers were likely to access (for example because of its prominence, any invitation to follow the link, or to make sense of the ad).
A food or drink was “less healthy” if it met two tests, set out in the rule. Firstly, it must be classified as high in fat, salt or sugar (HFSS) according to the Department of Health and Social Care’s Nutrient Profiling Technical Guidance. Secondly, it must also fall within a food or drink category set out in law. We understood that all Cadbury Easter-themed products were classified as HFSS foods and fell within the “less healthy” food Category 4, which was described in law as “Confectionary including chocolates and sweets”. They were therefore all “less healthy” products.
Ad (a) featured Easter-related imagery: a cartoon bunny and egg-shapes in block colours, including purple, yellow and light blue eggs with the text “Cadbury treats” on them. It also included additional references to Cadbury, including the logo in the text “Sponsored by Cadbury”. In that context, we considered consumers could reasonably be expected to identify that the ad was for one or more of Cadbury’s “less healthy” Easter products. We further considered that consumers would understand from the “SPIN to WIN” text, the animation, and Costcutter branding, that those Cadbury “less healthy” Easter-themed products were available to win from Costcutter in a competition. The ad was therefore for an identifiable “less healthy” product, or products.
We agreed with Bite Back’s contention that because consumers who clicked on the link in ad (a) were taken to a landing page, ad (b), those consumers’ understanding of what ad (a) was “for” would be informed by any specific less healthy products depicted and promoted on the landing page. We also considered that consumers who viewed ad (a) were likely to click on the link to the landing page.
However, if consumers could reasonably expect that ad (a) was “for” a less healthy product or products (including by taking into account the content of the landing page), the requirements of the Brand Advertising Exemption Regulations 2025 must then be considered. Brand advertisements (those that promoted a brand, including the brand of a range of products), were exempt from the restrictions, subject to certain provisions. For example, an ad that “depicted” a “specific” less healthy product was not a brand advertisement. A “specific” product was a product that was differentiated from other products, unless it was only differentiated by pack size or packaging format. Importantly, for the purposes of making an assessment of an ad under the brand advertising exemption, the wording of the Regulations dictated that only the content of the ad itself was relevant; extraneous material, including the content of a linked landing page, was not relevant.
We therefore, as required by the Regulations, made our assessment under the brand advertising exemption of the content of ad (a) in isolation, without reference to the content of the landing page, ad (b).
CAP’s Guidance noted that an ad could depict a specific less healthy product through the use of branding techniques, including through the use of names, text, imagery, logos, and brand characters. Combinations of brand techniques might when taken together result in an ad depicting a specific less healthy food, rather than the brand of a range of products.
The Cadbury name, logo and tone of purple featured in the ad (a) were used in relation to a wide range of products which were differentiated by flavour and product type, and we understood there was no specific Cadbury product with the name “Cadbury Treats”. The bunny shown in the ad was a generic cartoon bunny and was not used by Cadbury generally as a brand character or in relation to any specific product.
The coloured egg shapes in ad (a) were reminiscent of individual Cadbury Mini Eggs, which were coloured purple, yellow, white, pink or blue. However, the block yellow, blue and purple shades used for the egg shapes in the ads were not the same speckled pastel shades used for the product. We considered the ad therefore did not depict any specific Mini Eggs product. The purple egg shape was also reminiscent of Cadbury’s chocolate Easter eggs, the majority of which were wrapped in purple foil. However, we understood that the foil wrappers featured designs specific to individual eggs; the purple egg shapes therefore also did not depict any specific Cadbury chocolate Easter egg product.
We concluded that ad (a) viewed in isolation did not depict a specific “less healthy” food, and instead promoted only the brand of a range of products – Cadbury Easter-themed products – which could be won in the competition run by Costcutter.
In conclusion, ad (a) was for identifiable “less healthy” Cadbury Easter-themed products, whether taking into account the content of the ad alone or the content of the ad and the content of the landing page together. However, under the brand advertising exemption, which related to the content of the ad alone, ad (a) did not depict a specific less healthy product. The exemption for brand advertising from the ‘less healthy’ product rules therefore applied to it. We concluded that ad (a) therefore did not breach the Code.
On point 1, we investigated ad (a) under CAP Code (Edition 12) rule 15.19 (Placement of less healthy food and drink product advertisements online), but did not find it in breach.
2. Upheld
We first considered whether ad (b) was a paid ad placed on the internet.
Mondelez had paid Costcutter for their Seasonal Takeover package. That off-the-shelf promotional package featured several standard elements, including a bespoke landing page hosted on Bestway Retail’s website and paid social media ads. Costcutter’s marketing literature described the “Bespoke Gamified Landing Page” as “A fully customised digital experience, built exclusively for your brand or campaign engaging gameplay and creative tailored to your objectives”. The literature described the paid-for social media element as intended “to target and engage shoppers with campaign messaging, driving traffic to the game page”. It also included visual examples of what the paid-for ads and landing page might look like.
The advertisers said they had agreed that Mondelez would not pay for the landing page element of the Seasonal Takeover package.
However, the paid social media ad (a) did link to a landing page hosted on Bestway Retail’s website – ad (b). The landing page stated that Costcutter had “teamed up with Cadbury (Mondelez) to bring you a chance to win one of many prizes […]”, included details about the “SPIN to WIN” competition, and a linked button which brought up a further page where competition participants could enter their details before playing the game. Ad (b) featured Cadbury branding and pack shots of several Cadbury products. We considered ad (b) therefore met the description of the gamified landing page as set out in Costcutter’s marketing literature for the Seasonal Takeover package.
We therefore understood that all the usual elements of the Seasonal Takeover package had been delivered by Costcutter, including the gamified landing page on Bestway Retail’s website. We considered Mondelez had therefore paid for the full package, including the gamified landing page, albeit that they had received a substantial discount on the usual price. We noted Mondelez said they had had no input into, or control over, the content of the landing page. However, the test in law related only to whether a “person” (which included businesses) had made payment for an ad to be placed on the internet; the extent to which they had control over the ad’s content was not relevant. We therefore concluded that ad (b) was an ad, and that Mondelez had paid for it to be placed on the internet.
We next assessed whether ad (b) was an ad for identifiable “less healthy” products.
The ad described the “SPIN to WIN” competition, including that “many prizes” could be won. It also prominently featured photographic images of the packaging of various Cadbury Easter-themed products, and an egg wrapped in purple foil printed with a large Cadbury logo in gold text. In that context, we considered consumers could reasonably be expected to identify that the ad was for Cadbury Easter-themed products that could be won in the competition, including the products that were shown on the webpage. The ad was therefore for identifiable “less healthy” products.
We understood that all the specific products depicted in the ad – Cadbury Biscoff Filled Eggs, Cadbury creme eggs, Cadbury Mini eggs, Cadbury Mini eggs bars, and a Cadbury creme egg bar – were all classified as “less healthy” foods. The ad therefore depicted those specific “less healthy” foods, the advertising of which was restricted by the “less healthy” food rule.
The ad also included an image of an Easter egg wrapped in purple foil with the Cadbury logo written across it, once, in gold text. As set out in point 1, we understood that the majority of Cadbury’s chocolate Easter eggs were wrapped in purple foil, but that they featured designs specific to individual eggs. While some featured the Cadbury logo, it was written across the wrapper several times, and in both gold and black. We therefore understood that the egg shown in the ad did not depict a specific product and instead represented all Cadbury chocolate Easter eggs. We concluded that particular image therefore depicted the brand of a range of products.
However, ad (b) was a paid-for ad placed on the internet which depicted a number of specific “less healthy” Cadbury Easter-themed products. We concluded that it was a paid-for ad for identifiable “less healthy” products, was not taken outside the prohibition by the brand exemption, and therefore breached the Code.
On point 2, ad (b) breached CAP Code (Edition 12) rule 15.19 (Placement of less healthy food and drink product advertisements online).
Action
Ad (b) must not appear again in the form complained of. We told Costcutter Supermarkets Group Ltd t/a Costcutter and Mondelez Europe Services GmbH – UK branch t/a Cadbury (Mondelez) to ensure that their paid-for ads placed on the internet were not for identifiable “less healthy” products.
