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.
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
An Instagram post by Pamela Olender (@murphose) for the restaurant San Carlo Cicchetti, posted on 7 April 2026, featured a carousel of images. Four of the images showed a large filled croissant, with the second opened to show a Parma ham, mozzarella and rocket filling. A yellow drink was next to the croissant.
Two further images showed a sweet crepe. One of the images also featured a pink drink. The other, a close-up shot of the crepe, contained text that referred to a tiramisu cream and chocolate powder topping and stated “And yes, there’s a pistachio option too!”. The final image showed an A-board outside the venue with a croissant illustration and text that stated “BREAKFAST IS BACK!”.
The caption on the ad stated: “Croissants THIS BIG should be illegal!! [croissant emoji] [shocked emoji] Flaky, buttery and generously filled with Parma ham, mozzarella & rocket or pistachio & cream if you’re after something sweet... I honestly don’t know how they got them this massive! But no complaints here [face savouring food emoji] But @sancarlo_cicchetti also has plenty of other interesting brunch options - fluffy focaccias, full English breakfasts, classic Avocado Toast and even Eggs Crab & Caviar if you’re feeling extra fancy [winking face emoji] I don’t know about you, but I already can’t wait to come back and try everything else on the menu (can you tell that their deli counter is really calling my name?) [star-struck emoji] PS: The breakfast is available everyday from 9am - midday [heart hands emoji] #sancarlo #sancarlocicchetti #giantcroissant #breakfastmenu #manchester”
The post also displayed the linked text “San Carlo Cicchetti | Italian Breakfast Menu In Manchester | Giant Croissants Manchester | Where To Go For Breakfast In Manchester | Manchester Food Blogger”.
Issue
The complainant challenged whether the ad was:
- obviously identifiable as a marketing communication; and
- a paid ad for identifiable less healthy food products placed on the internet.
Response
1. Harnbury Holdings Limited t/a San Carlo (San Carlo) said Pamela Olender had been invited by their PR agency to attend the launch of San Carlo Cicchetti’s breakfast menu and had been offered complimentary food and drink for herself and a guest. They accepted that under the CAP Code that could constitute payment for the ad to be placed on the internet. However, they said they had not exercised editorial control over the Instagram post. They said there was no contractual agreement with Ms Olender, they did not tell her what the content should include or omit, they did not review or approve it before publication, and they did not reserve the right to require that it be amended or removed afterwards. They supplied email correspondence between the PR agency and Ms Olender. They believed those communications did not amount to editorial control and that the post therefore fell outside the scope of the CAP Code.
Ms Olender acknowledged that she had not included “#ad” or used Instagram’s paid partnership tool, although she had tagged the relevant brand accounts and had shared the content in the context of a hosted experience. She said her intention had been to share her genuine experience rather than to mislead consumers or conceal any commercial relationship. She added that there had been an understanding that she would share content on her Instagram account, including Stories and a grid post, tagging the relevant brand accounts, but that she had received no monetary payment. She confirmed that no approval or editorial sign-off had been required before the content was posted.
However, having reviewed the CAP Code and ASA influencer guidance, she understood that content resulting from gifted or hosted experiences should be clearly and immediately identifiable as advertising and that that needed to be explicit at the point of viewing. She said she would ensure that future gifted or paid collaborations were clearly and prominently labelled as advertising.
2. San Carlo reiterated that, while the provision of complimentary food and drink might constitute payment, the post fell outside the scope of the CAP Code rule relating to the advertising of ‘less healthy’ food because there was no editorial control. They did, however, provide nutrient profile information for the menu items referenced in the post.
Assessment
1. Upheld
The CAP Code stated that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context.
The ASA first assessed whether the relationship between Ms Olender and San Carlo established that San Carlo had sufficient control of the social media post, in conjunction with a payment to Ms Olender, for it to be considered a marketing communication falling within remit of the CAP Code.
We understood that Ms Olender had been invited by San Carlo’s PR agency to attend the launch of San Carlo Cicchetti’s breakfast menu and had been provided with complimentary food and drink for herself and a guest. We acknowledged that there had been no monetary payment, no formal contract, and no requirement for San Carlo to approve the post before publication.
However, the invitation stated that the experience was offered “in exchange” for a minimum of three Instagram Story frames and a grid carousel or reel tagging the restaurant account. A further email sent to Ms Olender attached a press release “so you have all the messaging and wording ahead of your visit”. Ms Olender’s post reflected some of the key messaging in the press release, including mentioning the restaurant’s deli counter and certain menu items.
In that context we considered the complimentary food and drink constituted a payment to Ms Olender in exchange for her posting about the restaurant. Additionally, there was a requirement to publish a minimum amount of content, in specified formats, to tag the restaurant account, and a clear direction that the content should be based on the press release. We therefore considered that San Carlo had sufficient control over the content of the post for it to be a marketing communication for the purposes of the Code.
We then considered whether the post was obviously identifiable as a marketing communication. We acknowledged that Ms Olender had tagged the relevant brand. However, the post presented her visit to the restaurant through images of the dishes alongside her comments and descriptions. We considered there was nothing in the content of the post, such as ‘#ad’ placed upfront, that made clear to users viewing it that it was an ad. We also considered that the tags, hashtags and linked text were not sufficient to make the commercial relationship clear.
Because the post did not make clear upfront its commercial intent, we concluded that it was not obviously identifiable as a marketing communication.
On that point, the ad breached CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 (Recognition of marketing communications).
2. 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.
Payment for ads to be placed on the internet included the provision of any monetary or non-monetary consideration, as well as direct payment. As set out above, the ASA considered the complimentary food and drink provided to Ms Olender constituted payment for her to post the ad. We therefore considered that San Carlo had paid for the ad to be placed on the internet.
The test determining whether the ad was covered by the restrictions was set out in law, as reflected in rule 15.19. A less healthy product was “identifiable”, in relation to ads, if persons in the UK could reasonably be expected to identify the ad as being for that product.
The post featured four images of a large, filled croissant, including images which showed and identified a ham, mozzarella and rocket filling. Text on an image and in the caption also referenced a croissant with pistachio and cream filling. The image of the A-board showed an illustration of a croissant and “croissants” were referenced more generally throughout the ad. Two images showed a crepe, with one identifying it as having tiramisu cream and chocolate powder, and also referenced a “pistachio option” in text. The caption also referenced that San Carlo offered “fluffy focaccias, full English breakfasts, classic Avodaco Toast” and “Eggs Crab & Caviar”. The post also more generally referenced “breakfast”, “brunch options” and a “deli counter”. We considered consumers could reasonably be expected to identify that the ad was for San Carlo’s breakfast/brunch offering in general, including food and drink products that were “less healthy”, and for the specific menu items referenced in the images and text.
Two of the images also showed drinks in glasses. An image showing Ms Olender taking a forkful of the tiramisu cream and chocolate crepe, with the text “However, it’s not just about the giant croissants here…” at the top of the image, also included a pink drink next to the plate. The image featuring a close-up shot of the filled croissant with the ingredients labelled and text in the top right corner also featured a yellow drink that was partly visible at the right-hand side. We acknowledged that neither drink was referenced in the on-image text or in the caption, and that the caption also did not more generally refer to the brunch drinks offering. However, we considered that in the image showing the pink drink, the drink was of equal visual prominence to the plated crepe. While the yellow drink in the other image was less prominent because it was at the edge of the shot, the drink was a distinctive colour and its position next to the on-image text drew the eye to it. We therefore considered that consumers could reasonably be expected to identify that the ad was also for those two drinks.
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. A “specific” product was a product that was differentiated from other products, unless it was only differentiated by pack size or packaging format. 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.
The ASA must therefore consider which of the following scenarios applied to the ad:
(1) An ad which depicted a specific “less healthy” food or drink sold by San Carlo would be in breach of the “less healthy” food rule.
(2) An ad which depicted a specific non-“less healthy” food or drink sold by San Carlo, by clearly identifying it as that specific non-“less healthy” food or drink (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 food or drink but did not identify which specific food or drink it was, we must assess whether the food or drink shown in the ad was visually indistinguishable from any specific “less healthy” food or drink sold by San Carlo. That was the case whether the realistic image in the ad was of a “less healthy” food or drink, or a non-“less healthy” food or drink. If it was visually indistinguishable from a “less healthy” food or drink, the ad would be in breach of the “less healthy” food rule.
We considered the general references to “brunch”, “breakfast” and the “deli counter” were general references which encompassed a range of food and drink products rather than any specific product. We understood San Carlo offered focaccias with a range of different fillings and therefore considered that the reference to “fluffy focaccias” also referred to a range of products rather than a specific product. Additionally, we considered the illustration of the croissant, shown in the image of the A-board, was a generic image which did not depict a specific croissant sold by San Carlo, because they offered three types of croissant (plan, pistachio and hazelnut) in addition to the two large filled croissants. We considered all those references to ranges of products therefore fell under the brand advertising exemption.
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.
The ad identified two options for fillings for the large croissants, which corresponded with the two ‘Giant’ croissants on San Carlo’s menu: the“Signature Giant Croissant with Parma ham, mozzarella & rocket” and the “Signature Giant Croissant with pistachio & cream”. The two crepes similarly identified in the ad based on their ingredients were the “Crepes al Tiramisu” and the “Crepes al pistachio”. The ad’s references to “Avocado Toast” and “Eggs Crab & Caviar” also corresponded with named menu items. Finally, the ad referenced “full English breakfasts”. There was only one English breakfast on the menu, the “Cicchetti Full English”. The ad therefore depicted those seven specific items on the San Carlo Cicchetti menu.
We understood from the nutrient profile information provided by San Carlo that all seven items were classified as HFSS. We considered the two croissants fell within the “less healthy” food Category 8, which was described in law as “Morning goods, including croissants […]”, and Category 13 which included “sandwiches of any kind, including […] filled croissants […]”. We considered the two crepes also fell within Category 8 which also included "pancakes", and/or Category 9 which was described in law as relating to “Desserts and puddings”. The filled croissants and crepes, and the Avocado Toast, Eggs Crab & Caviar and Cicchetti Full English also all fell within the section of Category 13 which related to “products ordered from a menu, which by themselves, or together with other products ordered from the same menu, are intended to be consumed as a complete meal”.
The ad therefore depicted seven specific “less healthy” foods. Scenario 1, as referenced above, therefore applied. The ad was also identifiably for the two drinks featured in the images, which were not named in the ad. However, we did not further assess which scenario applied to the depiction of those drinks, because we had already determined that the ad breached the Code through its depiction of the seven “less healthy” menu items referenced above.
We concluded that because the ad was a paid-for ad for identifiable “less healthy” products, which depicted seven specific “less healthy” foods, it breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 15.19 (Placement of less healthy food and drink product advertisements online).
Action
The ad must not appear again in the form complained of. We told Harnbury Holdings Ltd t/a San Carlo and Ms Olender to ensure that in future their ads were obviously identifiable as marketing communications, for example, by including a clear and prominent identifier such as “#ad”.
We also told Harnbury Holdings Ltd t/a San Carlo to ensure their paid-for ads on the internet were not for identifiable “less healthy” foods, such as through the depiction of a specific “less healthy” food product.
