Background
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, and The Advertising (Less Healthy Food and Drink) (Brand Advertising Exemption) Regulations 2025.
Ad description
A paid-for ad on Instagram for Thorntons, seen on 22 March 2026, featured an image of a milk chocolate egg and the text “OUR ICONIC EGGS” and “GET 10% OFF”.
Issue
Bite Back challenged whether the ad was a paid-for ad for an identifiable less healthy food product placed on the internet.
Response
Ferrero UK Ltd t/a Thorntons said the ad did not identify a less healthy food, that it fell within the brand advertising exemption and therefore did not breach the Code. It featured a generic chocolate egg with the Thorntons brand logo above the image, the text “Our iconic eggs” below the image and a link to the Thorntons’ website where consumers could purchase from a variety of products in the chocolate egg range.
They said Thorntons was the name of a long-established brand renowned for its hand-crafted chocolate and confectionery products across multiple categories. A large range of products fell under the Thorntons brand. It was therefore their position that it was a master brand.
They said the reference to “iconic eggs” in the ad clearly indicated that there was more than one product in the range of chocolate eggs available. At the time the ad was seen, there were seven chocolate eggs available in the Thorntons range, comprised of a variety of products and flavours, and were not only differentiated by the pack size or packaging format. The seven eggs available in the range were the Dinosaur egg, Unicorn egg, Marvellous Magnificent egg, Iceable Milk egg, Classic egg, Continental egg and Viennese egg.
Thorntons said the egg featured in the ad was not an actual or specific Thorntons product. They had intentionally included an image of a generic chocolate egg rather than a specific egg from their range of products. They provided front and rear images of each of their seven chocolate egg products.
Notwithstanding that Thorntons did not believe the ad identified a less healthy food product, they provided the nutrient profile calculations for each of the seven easter eggs in their range, which confirmed they were high in fat, salt or sugar (HFSS).
They confirmed that Ferrero UK Ltd had paid for the ad.
Assessment
Not upheld
CAP Code rule 15.19 required that persons must not pay for an identifiable less healthy food or drink product to be placed on the internet.
The ASA firstly noted that Thorntons had paid for the ad to be placed on the internet.
The test determining whether an ad was covered by the restrictions was set out in law, 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.
A food or drink was “less healthy” if it met two tests, set out in the rule. 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 a food or drink category set out in law. We understood that all Thorntons’ chocolate egg 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.
The ad featured a photographic image of a milk chocolate egg. It also featured the Thorntons logo and text stating “Established 1911”, “GET 10% OFF” and “OUR ICONIC EGGS”. In that context, we considered consumers could reasonably be expected to identify that the ad was for a price promotion on Thorntons’ range of chocolate eggs, including the one shown in the ad, that were “less healthy foods”.
We noted that brand advertisements (those that promoted a brand, including the brand of a range of products), were exempt from the restrictions in rule 15.19, subject to certain provisions. For example, an ad that depicted a specific less healthy product was not a brand advertisement. An ad that included a realistic image of a food or drink itself, out of packaging, where that food or drink was visually indistinguishable from a specific less healthy food or drink product, was also 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.
The ASA must therefore consider which of the following scenarios applied to the ad:
1. An ad which depicted a specific “less healthy” chocolate egg from the Thorntons’ range would be in breach of the “less healthy” food rule.
2. An ad which depicted a specific non “less healthy” chocolate egg from the Thorntons’ range, by clearly identifying it as that specific non “less healthy” chocolate egg (for example, by stating its name), would not be in breach of the “less healthy” food rule.
3. If an ad featured a realistic image of a Thorntons’ chocolate egg but did not identify which specific egg it was, we must assess whether the egg shown in the ad was visually indistinguishable from any specific “less healthy” chocolate egg in the Thorntons’ range. That was the case whether the realistic image in the ad was of a “less healthy” chocolate egg, or a non “less healthy” chocolate egg. If it was visually indistinguishable from a “less healthy” chocolate egg sold by Thorntons, the ad would be in breach of the “less healthy” food rule.
We understood that none of the chocolate eggs in the Thorntons’ range were non “less healthy” and therefore scenario 2 could not apply. We therefore considered whether scenarios 1 or 3 applied.
The ad featured an image of a chocolate egg out of its packaging and did not state the name of the product. We considered there was nothing in the ad aside from the imagery that could potentially identify the product as being a specific egg from the Thorntons’ range. We therefore assessed whether the imagery depicted a specific “less healthy” chocolate egg from the Thorntons’ range (scenario 1, above) and whether the egg shown in the ad was visually indistinguishable from any specific “less healthy” chocolate egg in the Thorntons’ range (scenario 3, above).
We compared the imagery in the ad to the photographic images of the front and rear of each of Thorntons’ seven chocolate egg products.
The egg in the ad’s imagery was a milk chocolate egg that had a texture with small bumps similar to lemon peel, but had no other patterns, markings, motifs or indentations.
The Dinosaur and Unicorn eggs had motifs of a dinosaur or unicorn respectively on the front of the products using white and coloured chocolate. The chocolate was also smooth rather than textured and on the back of the eggs was a large oval-shaped indentation.
The Classic and Continental eggs had white and dark chocolate line markings on the front of them and the Viennese egg had white chocolate line markings on the front of it. The Classic egg also had “Classic” marked into the chocolate on the front of the egg. The Continental and Viennese had smooth surfaces and the Classic was slightly textured, but less so than the egg in the ad’s imagery. The Classic, Continental and Viennese eggs all had a large oval-shaped indentation on the rear.
The Iceable Milk egg was slightly textured, but less so than the egg in the ad’s imagery. It had swirled markings on the front and a large oval-shaped indentation on the rear with the word “Thorntons” engraved on the inside of it.
Finally, the Marvellous Magnificent egg had the same colour and lemon-peel texture as the egg in the ad’s imagery. However, it had patterned markings on the front of a large flower, smaller flowers and beading, which was not present on the egg in the ad’s imagery. Also, it had a large oval-shaped indentation on the rear containing the word “Thorntons” engraved inside it, which was not present on the egg in the ad’s imagery.
Because of those differences, we considered that the imagery in the ad did not depict a specific “less healthy” chocolate egg from the Thorntons’ range and therefore scenario 1 did not apply. We also considered that, because of those differences, the chocolate egg depicted in the ad was visually distinguishable from the chocolate eggs in Thorntons’ range.
Because the realistic image of the chocolate egg in the ad did not depict a specific egg sold by Thorntons, and was not visually indistinguishable from any specific less healthy food or drink, we concluded the ad was a brand advertisement. We concluded the ad was therefore out of scope of the “less healthy” product rule and did not breach the Code.
We investigated the ad 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.
Action
No further action necessary.
